Hamad & Hamad

[2021] FCCA 1643

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hamad & Hamad [2021] FCCA 1643

File number(s):	SYC 2708 of 2020
Judgment of:	JUDGE B SMITH
Date of judgment:	19 July 2021
Catchwords:	FAMILY LAW – PARENTING – interim hearing – mother alleges serious family violence – police notes of complaints of violent behaviour by a range of other people – unacceptable risk – no time.
Legislation:	Family Law Act 1975 (Cth) ss 64B, 65D, 60CA, 65AA, 60CC and 60CG
Cases cited:	Britt v Britt [2017] FamCAFC 27 Masson v Parsons (2019) 266 CLR 554 Mazorski & Albright (2007) 37 Fam LR 518 Banks & Banks (2015) FLC 93-637 Goode & Goode [2006] FamCA 1346 Marvel & Marvel (No 2) (2010) 43 Fam LR 348 SS & AH [2010] FamCAFC 13 Eaby & Speelman (2015) FLC 93-654 Deiter & Deiter [2011] FamCAFC 82 M v M (1998) 166 CLR 69 B & B (1993) 16 Fam LR 353 Stott & Holger and Anor [2017] FamCAFC 152 Saliba & Saliba [2018] FamCA 210 McCall & Clark (2009) 41 Fam LR 483 Re Andrew (1996) 20 Fam LR 538
Number of paragraphs:	61
Date of hearing:	13 July 2021
Place:	Sydney
Counsel for the Applicant:	Mr Guterres
Solicitor for the Respondent:	Ms Thomas
Counsel for the Independent Children’s Lawyer:	Ms Flintoff

ORDERS

SYC 2708 of 2020

BETWEEN:

MR HAMAD

Applicant

AND:

MS HAMAD

Respondent

ORDER MADE BY:	JUDGE B SMITH
DATE OF ORDER:	14 JULY 2021

THE COURT ORDERS THAT:

1.   Orders 1, 3, 4, 5, 6, 13 and 14 of the Orders made on 1 April 2021 by Senior Registrar Campbell (as he then was) be set aside.

2.   The Applicant Mother shall have sole parental responsibility for the child namely, X born in 2015.

3.   The Respondent Father shall spend no time with the child.

Airport Watchlist

4.   That until further order, each party, MS HAMAD born in 1982 and MR HAMAD born in 1973, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Child, X, born in 2015 and female, from the Commonwealth of Australia until further order of this Court;

5.   AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said Child X on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watchlist until the Court orders its removal.

AND BY CONSENT THE COURT ORDERS

THAT:

6.   The Mother shall be and is hereby restrained from leaving the child in the sole care of Mr C at any time and shall use her best endeavours to ensure that no third party leaves the child in Mr C’s sole care.

AND THE COURT FURTHER ORDERS THAT:

7. Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

a. to consider the factors in sections 60CC and 65DAA of the Family Law Act 1975;

b.   to consider issues raised in the Family Consultant’s Memorandum to Court;

c.   to profile of the parents (and other significant adults);

d.   to assess the parents interactions (and those of other significant adults);

e.   to assess the child’s developmental and emotional state;

f.    to assess the relationship of the child to the parents (and other significant persons);

g.   to ascertain the wishes of the child unless inappropriate by reason of age or other special circumstance;

h.   to assess the proposed and actual home environments; and

i.    to assess the proposals of each party as to the child’s future.

8.   The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

9.   The report be released as soon as practicable, or unless otherwise arranged with Chambers.

10.  Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

11.  Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Children to whom these proceedings relate:

a.   a Children’s Court;

b.   a child protection authority;

c.   a convener of any legal dispute resolution conference.

12.  Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

13.  Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

14.  The proceedings are transferred to the Family Court of Australia at Sydney to be listed for directions before a Registrar on 10 August 2021 at 12.00pm.

15.  A Registrar of this Court approach a Registrar of the Local Court at Suburb D and seek access to any Local Court files from 1 January 2018 in respect of Mr Hamad including but not limited to proceedings 2019/00154152.

AND THE COURT NOTES THAT:

A.  This matter involves extremely serious allegations of Family Violence including the forced prostitution of the mother by the father.

B.  The ICL and the parties consider that the matter will be appropriate for the Family Court of Australia due to the complexity and the likely time for hearing. The Court agrees.

C.   This may be a case in which expedition would be appropriate given the interim no time order, subject to the resources available to the Family Court of Australia.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

EX TEMPORE REASONS FOR JUDGMENT

JUDGE B SMITH:

1. These are short-form oral reasons for decision pursuant to section 69ZL of the Family Law Act, the Act, in an interim application for parenting orders.  The matter before me is the mother’s application for review of a decision of a Senior Registrar given on 1 April 2021. 

2. In the amended application for review, at the mother’s court book page 5, she seeks sole parental responsibility with the father have no time with the child.  In the alternative only, she proposes supervised time, alternate Saturdays for two hours at the father’s cost.  She also seeks Watchlist orders. 

3. The orders the father seeks are also different to those made by the Senior Registrar.  They are set out at annexure A to the father’s case outline, and they seek equal shared parental responsibility, the child to live with the mother, but then that the child should spend time with the father each Saturday from 10.00am to 2.00pm, extending after a short period of time from 10.00am to 4.00pm, and then by September of this year alternate Tuesdays from after school to 7.00pm and each Saturday from 10.00am to 6.00pm.  Then extending again from that in October he suggests the alternate Tuesdays and in week 2, 10.00am Saturday to 10.00am Sunday and so on in an increasing progression.  In the alternative, if he is unsuccessful in his primary application, he sets out an alternative proposal for time with E Contact Centre for a period of time.  And then after a period of time, moving to unsupervised time.  The father also raised the possibility of having a friend be the supervisor and provided some evidence from that friend.

4. As the parties effectively sought different orders to those made by the Senior Registrar, any threshold question of whether or not the Court should intervene is clearly met.  In addition, there was additional evidence admitted and that evidence, in particular relating to police records, was in my view, significant. 

5. Now, I note that the applicant father, who I will call the father in the same way that the mother did in her affidavit, is not the biological father of the child.  But the parties were married, and the child knows him as his father, and there is no issue about his standing to seek parenting orders. 

6. There is a lot of material in a case.  But the short facts are as follows:

   (1)The mother is 39;

   (2)The father is 49;

   (3)The parties met in Country F, where the mother’s family had migrated from Country G;

   (4)They married in 2007;

   (5)The mother arrived in Australia in 2009;

   (6)The child, X, who is the subject of these proceedings, was born in 2015.

7. I will not go into all the detail.  But the mother alleges a very significant history of family violence.  She alleges a history of denigration and sexual servitude, including being compelled to sleep with other men to whom the father prostituted her.  The allegations she makes, if they were to be accepted, are in the most significant class of cases of family violence. 

8. The father denies the allegations, and I am not in a position to make any finding about that.  The father says that the issue has arisen in part because he complained of the risk to the child from a Mr C who he says is the mother’s new partner. 

9. The mother denies Mr C is her new partner.  She has consented, again, to injunctions against her leaving the child unsupervised with Mr C. 

10. The father also says that the mother, now that they are separated, is merely trying to rely upon the fact that he is not the biological father.  There is no doubt that she does rely heavily upon that both in her affidavit, and in what she said to the consultant in the child dispute conference.  But that does not take away from what the mother says about the history of family violence.

11. Post-separation, the mother says that the father has been seeking to influence the child against her, including telling him to hate her, that she is a slut, and that he should hit her.  Again, of course, the father denies these allegations.

12. Significantly, in this case as opposed to cases in which the Court merely has one word against the other – allegation and rebuttal – there is documentary evidence which the mother says adds weight to the proposition that, within the context of the risk assessment I must undertake pursuant to the principles which I will describe shortly, the Court would find there is an unacceptable risk as asserted. 

13. Now, the material which is relied upon, I think given the seriousness of the allegations, should be read onto the record and I will treat it as being read onto the record and then discuss it. 

14. I note that on 13 January 2001, starting at page of 87 of the PDF, being the mother’s court book, there is a history of an allegation made by a person who appears to be the father’s former wife. 

    The victim and defendant were married in Country F about 6 years ago. They came to Australia about 2 years ago and due to the fact in Country F the victim was only 14 years old when they were married, they became remarried in Australia to make the marriage legal herre. [sic] The victim has suffered ongoing verbal and physical abuse from the defendant. He often hits her in the head and now she suffers from occasional dizziness. On Wednesday 10th January 2001 the victim was forced from her home by the defendant. She was forced to go to her aunties house against her will. She stayed there for 2 days and contacted a friend/neighbour to collect her. She returned to a nieghbours house without the knowledge of the defendant about 5pm on Friday 12th January 2001. The neighbours have attempted to calm the situation by talking with the defendant. These attempts were unsucsesful, [sic] with the defendant stating that the victim must leave their house by 1am. The defendant attended the neighbours house where the victim was talking with friends. He forced his way into the house and threatened the victim by pointing at the victim and stating, “If you stay after 1am you are finished”. The defendant was removed from the house and went to his house where he took a knife and confronted another neighbour [sic] who the defendant was helping the victim. Assaulting him in the house and driveway. The victim fears for her life and doesn't wish to see the defendant again. She does not wish to return to the property. The defendant was arrested by Suburb H Police at his home address and conveyed to Suburb H for the purpose of a TIO. A TIO was applied for by Suburb J  Police and was granted with usual conditions, not to approach etc. The TIO was faxed to Suburb H Police Station for their [sic] attention/service. [The victim] SPEAKS NO ENGLISH AND REQURIES [sic] AN COUNTRY F INTERPRETER.

15. Now, the allegations were that the former wife was only 14 years of age when they were married.  She said that she suffered ongoing verbal and physical abuse from the defendant.  She said that he hit her in the head to the extent that she suffered from dizziness.  She made allegations around coercion and control.  She referred to threats, such as:

    If you stay after 1am you are finished.

16. She refers to the father using a knife and confronting a neighbour, who was assisting, and assaulting him.  And she said that she feared for her life.

17. I have not heard from this person.  As I understand it the father puts all of this in contest.  But I note that there is no reason to think that the wife was aware of this prior to when she made her first complaint to police in 2012, which I will come to. 

18. I take into account the principles from Britt v Britt [2017] FamCAFC 27 on the submission that I should give weight to this as supporting the wife’s complaints. I will just note before I go on, that in Britt & Britt in 2017, at paragraph 34, although in the context of admissibility of evidence, the Full Court summarised the principle applicable when one weighs evidence generally, which is:

    In this regard it is important to note that the probative value of a particular piece of evidence should not be considered in isolation from the rest of the evidence, including the proposed evidence.  This is particularly so where the court is asked to draw an inference from all of the evidence, that is to say, all of the circumstances of the matter.  This is because one piece of evidence may affect the probative value of another and a number of pieces of evidence when considered together may have a probative value greater than if each is considered individually.

19. The mother’s submission is that when it is just her word against the father’s word, it is a difficult situation for the Court, but when there is a former wife who independently and much earlier has gone to the police and made similar allegations – not identical, but similar in the context of the level of violence and threats involved – that piece of evidence would affect the probative value of the mother’s evidence. 

20. The next piece of evidence referred to at page 83 of the mother’s court book, a police record on 10 December 2003.  Again, I will treat that as being read onto the record:

    The VIC is a building contractor who has has several contractual dealings with the POI. The VIC and the POI were involved in a civil dispute regarding outstanding monies. This matter was dismissed, however, the POI still believes that the VIC owes him in the vicinity of $70000, despite the outcome of the civil court decision .. About 8.00pm Wednesday, 10th December 2003, the VIC attended Suburb K Police Station to report that he had received a number of threatening phone calls from the POI. . The VIC stated that between the hours of 5.00pm to 7.30pm he had received in excess of 20 calls upon his mobile phone from the POI. The calls to his mobile were received from an undisclosed private number, however, the victim was in now doubt as the the identity of the caller. The POI made several references in relation to an outstanding monitory amount of $70000. The POI allegedly stated, “You’ve got till 7.00pm tomorrow or we’ll start taking out you and members of your family.” . The POI also allegedly threatened to rape the victims mother and sister and threatened the life of his brother and father .. The VIC stated that he has not seen the POI since March of this year nor has he had any other contact with him since this date .. The VIC asked for Police to contact the POI in an effort to achieve a cessation of the alleged threatening phone calls. Police contacted the POI on his mobile phone number at 9.00pm. The POI denied making any phone calls to the VIC on the 10/12/2003, but stated that he had contacted the VIC two days before hand. Police informed the POI that the incident had been repo1ted and that any further calls would be investigated in the light of taking formal action.

21. In summary, here is a person who appears to be an entirely independent person of the father, dealing with him not in the familial situation but in the general commercial world.  It says that when the father lost his civil case, the father then turned to threats including threatening the person and his family.  It is denied.  However, the mother says that this piece of evidence would also be weighed in the balance and affect the probative value of the other evidence to suggest that this is a violent man who is happy, not only inside his family sphere but outside it, to ignore the generally accepted legal and social principles to get what he thinks he should have.

22. I then come to pages 81 and 82 of the mother’s court book, starting at 81.  There is the reference of the mother making a complaint on 28 August 2012.  This material, which is evidence of a prior consistent complaint is relevant to the question of whether there has been a recent invention or subsequent fabrication as alleged on the husband’s case that this has only arisen because of his complaints about Mr C’s post-separation involvement with the mother.  I read this onto the record:

    The victim, Ms Hamad and the Defendant, Mr Hamad have been married for the past three and a half years. They recently separated three weeks prior to this report as Religion inevitably came between their marriage. The victim in this matter is of an Islamic faith and the Defendant is of a Christian faith .. At 17:45 hours on Tuesday the 28th of August 2012, the victim attended Suburb H Police Station to report that the Defendant had been following her. ........ relates .. The victim attended the Police Station with her close friend and confidant, ......... who assisted her whilst communicating with Police as she speaks limited English .. Whilst making the report, the victim disclosed allegations of a sexual nature to the Police .. Suburb H Detectives met with the victim and ......... and the following version of events so far was obtained ... During Ramadan (month of August) the victim was fasting. The Defendant has had sexual intercourse penile/vaginal on three (3) separate occassions without the victims consent. . On all three (3) occassions the victim alleges the Defendant held her down and removed her clothing. The Defendant did not wear a condom and did not ejaculate .. The victim further informed Police that during the course of their marriage, the Defendant would force the victim into having sexual intercourse with around 5-8 unknown males .. These unknown males would pay the Defendant money for the sexual intercourse which he would keep for himself .. Detectives explained the process and roles of Police in relation to the allegation of assault and provided the victim with contact numbers for telephone Counselling Services .. The victim at this stage, wished to speak with Counsellors and her friends before providing a statement to Police in relation to the sexual assault .. The victim is fearful of the Defendant, especially as he knows where she is currently residing .. Police to apply for an Urgent Apprehended Violence Order for the victims protection […].

1. There are allegations of rape within marriage where the wife says that she was held down and her clothing removed.  And there is also the allegation that the father would force the wife to have sexual intercourse with other men, who would pay the father money for the intercourse which he would keep for himself, in effect forced sexual servitude.  As I have indicated, these are an extraordinarily serious set of allegations made 10 years ago.

2. The wife then also refers to, at 76 to 78 of the court book, the allegation that has been made about a 17 year old girl.  And I note there are two references.  One at 77 for 15 May 2019, concerning the JRU assessment.  And then on 16 May, an event created by the police.  I will treat it as being read onto the record.  The material on page 77 under the 16/5/2019:

   On the 12th May 2019 the DEFENDANT was at home at.. ......................... , when he received a phone call from his niece stating that she had just finished school and wished to visit him with her sister and the PINOP. The DEFENDANT had no issues with this and agreed. On the same evening the DEFENDANT nieces and the PINOP attended where the DEFENDANT introduced himself to the PINOP and allowed them to stay for some time. The DEFENDANT has started a conversation with the PINOP and sat beside her on the couch. The DEFENDANT has asked the PINOP to stay the night and that he would drop her off at school the following day. The PINOP has declined and stated she could not stay. The DEFENDANT has left the premises the have a cigarette and asked the PINOP to accompany him outside. The PINOP has asked her friend (DEFENDANT niece) to come outside with her. As they walked outside the niece has locked the door on the PINOP and she could not get back inside. At some point during the evening the DEFENDANT has moved the PINOPs hair from her neck and began kissing her on the right side of the neck as well as putting his hand on her right thighs and moved his hand towards the PINOPs vagina and placing it on it. The DEFENDANT rubbed the PINOPs vagina over her pants. The PINOP made attempts to push the DEFENDANT hands away and try to open the door to get back into the house. The DEFENDANT has said if you want me to stop I will. The DEFENDANT has then tried to kiss the PINOP however she moved her head away from him. About 8.00pm, the PINOP managed to get back into the house where she advised the nieces that it was time to go home. The DEFENDANT agreed to take them home where the PINOP sat in the rear seat and the DEFENDANT asked her to sit in the front seat to which she accepted. The DEFENDANT attended Suburb D Police station with his two nieces as he was advised that Police needed to speak with him. The DEFENDANT was subsequently arrested for indecent assault and was conveyed to the charge room where he was introduces [sic] to the custody manager and had his rights a responsibility read and explained to him. The DEFENDANT was offered the opportunity the participate in an electronically recorded Interview. The DEFENDANT accepted, and this was recorded on .......... During the Interview the DEFENDANT denied all allegations placed upon him and stated that the PINOP had mental problems and that she is getting back at him for an unrelated incident that occurred between her and his niece at school. Due to the above circumstances and conflicting versions. The DEFENDANT was released with no charges and had a Personal violence order served on him. The OIC to further investigate the matter […].

3. The allegation effectively of sexual assault on a 17 year old girl who is the father’s niece’s friend, whom I note the JRU records say is in a supported class at school due to her learning difficulty, is also said to be of further evidence in effect of the father’s bad character and the fact that he does not comply with any accepted norms of behaviour, and that this is all said to go to support the likelihood of the mother’s allegations being correct.  I will note, of course, as I said, the father denies the allegations. 

4. I will consider now the legal principles that binds me in the making of this decision. 

5. Parenting orders are sought by each party. There is no suggestion the father is not a person who has standing to seek parenting orders. Such orders are defined in Part VII, Division V. I note sections 64B and the Court’s power to make orders 65D. The paramount consideration is, of course, X’s best interests. I note sections 60CA and 65AA.

6. The primary considerations when determining the best interests of X are as set out in section 60CC. First and foremost is the need to protect the child from physical or psychological harm, from being subject to or exposed to abuse, neglect, or family violence. And second is the benefit to the child of a meaningful relationship with both parents. There are the twin pillars referred to by Brown J in Mazorski & Albright (2007) 37 Fam LR 518.

7. There is a dispute as to whether or not, and I note Masson v Parsons (2019) 266 CLR 554, the father is a “parent”. In any event, to the extent to which the section 60CC(3)(m) factor requires or allows me to consider other relevant factors, I think that the relationship between the child and the father, who the child believes to be his biological father and parent, is a factor which should be considered in the same way that I would consider the question of the benefit to the child of a meaningful relationship with both parents if the father were the biological father and I will do that. It may be that the presumption does not apply in this case. In any event, given the material here, I am going to consider the question of parental responsibility based upon all of the evidence and issues raised.

8. There are a range of additional considerations in section 60CC(3), however, as the Full Court said in Banks & Banks (2015) FLC 93-637 the issues joined by the parties indicate which section 60CC(3) issues are relevant.

9. The core issue here is risk.  That includes what the mother says generally of the father, and his alleged conduct in seeking to alienate the child from the mother and create conflict between the child and the mother.  If right that latter could significantly impair, in the long-term, the child’s attachment to the mother, and that is to be weighed against the benefit to the child of maintaining a relationship with the person he thinks of as his biological father. 

10. I note that I am required by Goode & Goode [2006] FamCA 1346 to identify the proposals of the parties which is done above, and the issues in dispute which are significant. There are very few agreed and uncontested facts which I have not considered. I note the classic statement at paragraph [81] that:

    In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.  However, the legislative pathway must be followed. 

11. I note that, as the Full Court said in Marvel & Marvel (No 2) (2010) 43 Fam LR 348 that this is an interim hearing, and the orders are:

    […] a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing […].

12. But a conservative approach is to be adopted.  And in factual findings to be made at an interim hearing should be

    […] couched with great circumspection. 

13. Indeed, it is certainly not appropriate for me to attempt to make any factual findings today about the very serious allegations that have been made, both about what occurred to the mother alone and in the child’s presence or what the mother says the father has been doing to the child, which is a form of child abuse if he is trying to alienate the child from the mother as primary attachment.  However, as the Full Court said in Eaby & Speelman (2015) FLC 93-654, when considering the question of disputed facts in interim hearings, at [18]:

    that does not mean that merely because the facts are in dispute the evidence on the topic must be disregarded, and the case determined solely by reference to the agreed facts.

14. That must be the case.  The Court cannot make findings of fact.  But the Court must assess the evidence as best it can within the parameters allowed, without the making of findings of facts, and taking a conservative approach. 

15. I also note, as part of the mother’s case, that whilst section 60CC is what’s guiding me, section 60CG requires me, when considering what parenting orders to make, to ensure that whatever are orders are made, it does not expose a person to an unacceptable risk of family violence where it is possible to do so without being inconsistent with the primary considerations.

16. When it comes to assessment of risk, the Full Court said in 2010 in SS & AH [2010] FamCAFC 13)::

    Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

17. And in a similar vein in Deiter & Deiter [2011] FamCAFC 82, the Full Court said:

    The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

18. The test of risk is, of course as set out in M v M (1998) 166 CLR 69:

    In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from […] abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of […] abuse.

19. In B & B (1993) 16 Fam LR 353, the Full Court said:

    […] to “achieve a balance between the risk of detriment to the child from […] abuse and the possibility of benefit to the child from parental access.” In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

20. In Stott & Holger and Anor [2017] FamCAFC 152, considering this, the Court said, in part:

    Its formulation is all about balance.  In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.  The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ […].

21. In B & B, the Court said under the heading of “Who should supervise the access?”:

    Both social science literature and experience demonstrate that it is generally inappropriate to have friends or relatives of the access parent as supervisors of access where any risk of harm to the children exists. (See, for example, Beverly James and Claudia Gibson, “Supervising Visits between Parent and Child”, Family and Conciliation Courts Review, Volume 29 No. 1 January 1991, 73; William F Hodges, Interventions for Children of Divorce: Custody, Access and Psychotherapy (2nd ed) 1991; Wyatt and Powell, Lasting Effects of Child Sexual Abuse (1988); and Patton, Family Sexual Abuse: Front Line Research and Evaluation (1991).)

    Family and friends are not neutral but will usually, as is the case here, have an opinion as to whether any harm has occurred or whether any risk exists. They may therefore believe that close monitoring of the children is unnecessary. In a practical sense they cannot always be present and may fail to respond protectively to complaints of abuse or distress by the children. Supervisors must be available to the children for safety and support and be prepared to intervene on the children's behalf if an issue of protection arises during the visit. It is, in our opinion, unrealistic to expect a supervisor to undertake those responsibilities on a regular weekly or fortnightly basis for an indefinite period.

    For the above reasons it is in most cases undesirable for friends or family of the access parent to supervise children during access periods in circumstances where either abuse has been found to have occurred or there is an unacceptable risk of abuse occurring.

22. Those are the authorities that bind me.  It was suggested that the lack of financial capacity to pay for long term supervision would create an exception to that principle.  I do not accept that.  Otherwise, in many cases that rule would have little or no place to play because there are often issues about who can afford to pay for ongoing supervision.

23. But coming back then to the question of what the benefit of a meaningful relationship means, considering it is not defined in the Act, I note what Hannam J said in Saliba & Saliba [2018] FamCA 210, where she approved or adopted the discussion from Brown J in Mazorski & Albright:

    What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.

24. And the Full Court said in McCall & Clark (2009) 41 Fam LR 483:

    Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

25. It was further said in the McCall & Clark that no doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents.  But there will also be some cases where there will be no positive benefit to be derived by a child, or by the Court attempting to craft orders to foster a relationship with the one parent if this would not be in the child’s best interests. 

26. Now, I have not gone through all of the evidence because there is only so much that could be dealt with in an interim parenting hearing.  But that is the outline of the contest, and again I emphasise that I cannot make findings of fact. 

27. But having considered all of the material, and noting Eaby & Speelman, and the principle cited from Britt & Britt, the mother makes serious allegations.  If it was just her current word against the father’s, that might be one thing.  But I have the statement by the former wife to police, although no conviction.  I have the statement by the contractor to police, although no conviction.  I have the evidence of the wife’s complaints in 2012, a long time ago and before the child was born.  Family violence issues are complex.  Some people may ask, why, given the complaint she made in 2012, she remained with the father.  But she was a non-English speaking migrant with no support, and may have had no other alternative.  Then there is the evidence about the recent issue with the 17 year old.  Again, there has been no conviction. 

28. When I weigh all of that material it causes me great concern. 

29. I note that there also was an issue of the Re Andrew (1996) 20 Fam LR 538 question, concerning the mother’s psychological capacity. That was raised in the report at court book page 71. But I am not sure how far that can go at the moment on the evidence before me. I think it is something that I can weigh, where she reported symptoms of “low mood, irritability […], insomnia, lack of energy and motivation,” in the context of incidents of domestic violence and manipulation by the father.

30. I then proceed to the assessment that I am required to undertake as in SS & AH.  Given the material I have, I have grave concerns about the father’s conduct.  There is a lot of material that makes me think that the mother’s complaints are at least credible.  And it is not merely a question of whether the father might hit the child.  If he is seeking to alienate the child, that is a significant psychological risk, and it is a significant form of potential abuse. 

31. I think that the evidence gives rise to a likelihood of the occurrence of verbal abuse and a real risk that the father will, in effect, perpetuate psychological abuse on the child by seeking to impair the child’s attachment to the mother.  The consequence can be extremely impactful for such a young child if his attachment to his mother is impaired, or if he is otherwise subjected to the kind of abuse which might come from a person who acts as the mother alleges, and as the allegations of various other people suggest.  I think that the risk of occurrence is significant as is the risk of harm. 

32. The question then is whether supervised time is appropriate.  As Stott & Holger and Anor said, the reason we have supervised time is to have a safeguard to convert an unacceptable situation to an acceptable one.  Now, we then have to also ask some questions about the possible risk, as B & B again noted, to a child if he has had situations where he has seen the father commit family violence against the mother.  If he has, in effect, been the subject of family violence by the father, saying certain things to him, requiring him to have time with the father may also have a negative emotional impact on him. 

33. The mother says the child is doing well at the moment.  Again, I note that that is only what she says.  But if the child spends supervised time for a considerable period and then the time stops, that could be very adverse to the child. By the same token, it may be that the father’s case will be accepted.  I really cannot know.  If it is there could be a significant impairment to the child’s ability to have a relationship with the father from a no time order now.

34. I note that I am obviously not bound by what the ICL says.  But I do give consideration to what is said by an appointed ICL.  I note that the ICL’s case outline, prior to the hearing, stated:

    As ICL I tend to the view that on an interim basis any risk to X that might arise from spending time with the father can be mitigated by such time being supervised, either through a children's contact centre or by a suitably qualified person who can manage any such risk (Blinko & Blinko [2015] FamCAFC 146).

35. However, that submission was made based upon the prior material.  The ICL with the Court, had the opportunity to be taken in detail through all of the additional evidence of the former wife, the niece’s friend, the business associate, the prior complaints of the mother, indicated that weighing all of those things.  The ICL submitted that they tended at the end of the interim hearing towards a no time order. 

36. I am alive to the fact that there is no ideal outcome and that whatever decision I make involves a risk to X.  On the one hand, these are not circumstances in which I would order unsupervised time given the risk as I assess, nor noting what was said in B & B would I order supervised time that does not involve a paid supervisor. 

37. The questions then for me, as I have said, are:  Is the risk for X greater of being placed with the father, under supervision, where he may have witnessed and been subjected to abuse and be impacted by being required to have the time, and where there is also a prospect of no time in the long run so that maintaining the relationship or rekindling it now may cause him even more pain later? Or, is the greater risk for X losing his relationship with the father now and not being able to re-establish it if the father’s case is accepted and if that is considered the suitable option later?

1. I have been very troubled by this.  Ultimately, I have come to the view that the greater risk to X would be of being required to have the supervised time now, given the evidence I have before me.  And in those circumstances, I, in effect, accept the mother’s case as ultimately supported by the Independent Children’s Lawyer.  On that basis I propose to make orders as sought by the mother.

2. Those are my orders.  Before I finish today, I am going to ask the parties about whether a family report should be ordered and whether, given the nature of the allegations, this matter should be transferred to the Family Court of Australia.

I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge B Smith.

Associate:

Dated:       19 July 2021