Harendra & Veda (No 3)
[2024] FedCFamC2F 27
•19 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Veda & Harendra (No 3) [2024] FedCFamC2F 27
File number(s): SYC 3939 of 2022 Judgment of: JUDGE TURNBULL Date of judgment: 19 January 2024 Catchwords: FAMILY LAW – REVIEW – interim parenting – where orders for equal time varied with the Father only permitted to spend supervised time with the children – where the children are expressing views to live or spend substantial time with the Father – whether the Father poses an unacceptable risk to the children as opined by the Single Expert – where the Single Expert applies a risk assessment tool and concludes that the father poses a serious threat to the Mother and the children - whether the children should live with the Father or spend substantial unsupervised time with him - where a cautious and conservative approach to be adopted Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bant & Clayton [2019] FamCAFC 198
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Bringinshaw v Briginshaw (1938) 60 CLR 336
Eaby & Speelman [2015] FamCAFC 104
Godfrey & Sanders [2007] FamCA 102
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1998) 166 CLR 69
Marvel & Marvel [2010] FamCA 240
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Murphy & Murphy [2007] FamCA 795
SS & AH [2010] FamCAFC 13
Division: Division 2 Family Law Number of paragraphs: 94 Date of last submission/s: 13 December 2023 Date of hearing: 13 December 2023 Place: Hobart – via Microsoft teams Counsel for the Applicant: Mr Ahmad Solicitor for the Applicant: Broun Abrahams Burreket Counsel for the Respondent: Ms Shea Solicitor for the Respondent: Rubin Blight Hardy Family Lawyers Counsel for the Independent Children’s Lawyer Ms Bleier Solicitors for the Independent Children’s Lawyer Steiner Legal Pty Ltd
ORDERS
SYC 3939 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HARENDRA
Applicant
AND: MS VEDA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
19 JANUARY 2024
THE COURT ORDERS THAT:
1.The Application for Review filed by the Father on 15 November 2023 is dismissed.
2.The Orders made by a Senior Judicial Registrar on 27 October 2023 remain in place with full force and effect.
3.Pursuant to section 149 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), this proceeding is transferred to the Federal Circuit and Family Court of Australia (Division 1).
AND THE COURT NOTES THAT:
A.The matter has been transferred to Division 1 due to the complex nature of the issues in dispute and that the final hearing will likely exceed 5 days.
B.The parties will be contacted directly by the National Assessment Team confirming the transfer of proceedings and the next listing date.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Introduction
This is an Application for Review filed by Mr Harendra (‘the Father’), of Orders made by a Senior Judicial Registrar on 27 October 2023 (‘the Orders’) relating to the children X born in 2010 and Y born in 2013. The Mother is Ms Veda (‘the Mother’).
The Review specifically challenges Orders 2 to 11 and 14 to 18, which in essence, place the children in the Mother’s care and provide the Father with up to four (4) hours of supervised time per week. In their place, he seeks Orders that X and Y live with him and spend time with the Mother each alternate weekend from 1 pm on Saturday to 6 pm on Sunday together with special occasion time.[1] He also seeks an Order for sole parental responsibility.
[1] Application for Review of Mr Harendra, filed 15 November 2023.
The Independent Children’s Lawyer, Ms Bleier, does not support the Father’s Application, and, with the Mother, asks that the Review be dismissed. [2] All parties were in agreement, however, in asking that the proceedings be transferred to Division 1.
[2] Independent Children’s Lawyer Case Outline (Interim Hearing), filed 12 December 2023 (‘ICL Case Outline’).
Pursuant to Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), an Application for Review is to be heard as an original hearing.
Background
X is currently 13 years of age and is in Year 8 at B School.[3] The Court Child Expert describes X as a ‘polite and mature young person who appears to enjoy her school and opportunities for socialisation with her friends.’[4]
[3] Affidavit of Ms Veda, filed 20 October 2023 [2] (‘Mother’s Affidavit’).
[4] Child Impact Report, dated 5 April 2023 [8] (‘CIR’).
Y is currently 10 years of age and is in Year 4 at C School.[5] Y is described as an intelligent child who has thrived in his education in the past.[6]
[5] Mother’s Affidavit (n 3) [2].
[6] CIR (n 4) [25].
The parents met at university and commenced a relationship in 2000.[7] They were married in 2008 and commenced cohabitation at this time.[8] Both became health care workers and jointly owned and commenced working in their business in 2015.[9]
[7] Statement of Agreed Facts, filed 12 December 2023 1.
[8] Ibid.
[9] Ibid.
The parents separated in mid-2022, with both moving out of the matrimonial home,[10] at which time the Mother and children moved into refuge accommodation, allegedly fearing for their safety.[11]
[10] Mother’s Affidavit (n 3) [3].
[11] CIR (n 4) [6].
The Mother asserts the Father perpetrated family violence during their relationship in the form of physical, verbal and emotional abuse.[12] The Father denies the allegations and counters that the Mother was the aggressor, alleging verbal abuse and aggressive behaviour towards him and the children.[13]
[12] Ibid [16]; Mother’s Affidavit (n 3) [7]-[8].
[13] CIR (n 4) [19].
At the time of separation, the Father was charged with a number of domestic violence offences and served with an Interim Apprehended Violence Order by the Police.[14] The charges are currently the subject of a defended hearing before the local court and were expected to conclude in late 2023.[15]
[14] Mother’s Affidavit (n 3) [3].
[15] Ibid; Affidavit of Mr Harendra, filed 23 October 2023 [10] (‘Father’s Affidavit’).
Following separation, the children lived with the Mother and spent supervised time with the Father. The children were also homeschooled by the Mother until Orders were made in October 2022 returning them to face-to-face learning.[16]
[16] Order of a Senior Judicial Registrar in Harendra & Veda SYC3939/2022 (Federal Circuit and Family Court of Australia, Division 2, 4 October 2022).
The Mother initiated proceedings on 9 June 2022. On 31 July 2022 the Father commenced spending professionally supervised time with the children each Sunday.[17] An interim hearing was held on 20 September 2022 resulting in Orders of 4 October 2022 which provided, in summary, for the children to live with the Mother and spend daytime with the Father each Sunday supervised by the Paternal Grandmother, Ms D.[18] The Mother filed an Application for Review on 25 October 2022 seeking a return to professional supervision, but the Review was dismissed by Judge Taglieri on 9 December 2022. The 4 October 2022 Orders were later varied on 2 June 2023, following the interim hearing before a Senior Judicial Registrar, which resulted in an equal time arrangement being ordered.[19]
[17] Mother’s Affidavit (n 3) [9].
[18] Ibid [10].
[19] Ibid [14]; Order of a Senior Judicial Registrar in Harendra & Veda SYC3939/2022 (Federal Circuit and Family Court of Australia, Division 2, 2 June 2023).
In mid-2023 the Mother was admitted to hospital with an illness. She was readmitted again a few days later. The children remained in the Father’s care during this period.
On or about 29 July 2023, the children were not returned to the Mother in breach of the 2 June 2023 Orders, leading to her filing urgent recovery proceedings on 8 August 2023, which came before a Senior Judicial Registrar. Y was returned to the Mother before the matter was heard, however, X remained in the Father’s care until the making of the 27 October 2023 Order, with the Mother not pressing for her recovery.[20]
[20] Case Summary of Ms Veda, filed 11 December 2023 [8] (‘Mother’s Case Summary’).
For the purpose of the interim hearing, a Single Expert Report was received from Ms E, who recommended that the children live primarily with the Mother and spend professionally supervised time with the Father, concluding that the Father poses an unacceptable risk of harm to the children.
Given the Mother’s allegations of family violence, Ms E applied a PPP[21] Screening tool (‘PPP’) to assess whether the children were at risk from the Father. Ms E explains her use of PPP:
157.Family violence covers a wide range of controlling or other behaviours, commonly of a physical, sexual and/or psychological nature, which involve fear, harm, intimidation, and emotional deprivation. Corroboration is not required during risk assessment and findings may be made on the balance of probabilities referencing an accumulation of factors. The Family Law Act does not require independent verification of allegations of family violence (such as police or medical reports) for a Court to be satisfied that it has occurred.
158.It is considered best practice to use a screening tool to identify family violence and to consider the pattern of conduct and impact, using lethality risk indicators to identify and respond to high risk matters.
159.There are many family violence screening tools available for professionals to use, including the Family Law DOORS (detection of overall risk screen); however, for the purposes of this report the report writer has chosen to utilise the PPP screening tool in circumstances where risk assessment and safety planning has previously been carried by other agencies, including a DVSAT assessment undertaken [in early] 2023. The advantage of the PPP is that it provides a very clear picture of the parties’ concerns when preparing single expert reports.
160.Using the PPP screening tool to assess risk by reference to three factors (potency, pattern, and primary perpetrator) gives a useful framework of factors to look for when considering the risk and impact of the violence. The screening tool flags risk, as opposed to offering a definitive measure of risk. It is only valid at the time of administration as other variables may need to be considered over time which either reduce or increase the level of risk. It is not the report writer’s role to test the evidence or to make a finding of fact.[22]
[21] PPP is the acronym for three assessed criteria — Potency of violence, Pattern of violence and coercive control and Primary perpetrator indicators: Who is the primary aggressor, if either?
[22] Single Expert Report of Ms E, dated 18 September 2023 [157]-[160] (‘Single Expert Report’).
Ms E relies on information that she received from the parties, together with subpoena material and the parties’ documents, when considering the three criteria of PPP.[23]
[23] Ibid [160].
Ms E considers each PPP criterion at length and concludes:
216.The PPP risk assessment raised a significant number of red flags, indicating that a lethality assessment was warranted. This finding was commensurate with the DVSAT tool completed [in early] 2023, identifying 17 high risk DFV indicators. The checklist was utilised by the report writer to identify lethality indicators, with information obtained from the parents during the interviews. Information provided by the father did not raise concerns in regard to lethality; however, information provided by the mother scored a possible 25 out of 39, indicating a very high risk of lethality. falling into the ‘serious threat’ category.
217.In order to understand how lethality checklists work, it is necessary to remember that if steps are taken to reduce identified risk, it becomes impossible to state with any certainty that the risk existed in the first place. If you say that there is a chance that someone will be killed or seriously harmed and it doesn’t happen, then it could be argued that the risk was overestimated or never existed in the first place. However, these screens have been applied retrospectively to cases where lives have been lost and it is considered best practice to take them very seriously. One example of this can be found in the recent coronial inquiry into the death of a young mother and her 3 children in Queensland where the coding system was applied retrospectively, scoring 29 out of a possible 39 (predicting a very high risk of lethality). The Death Review Committee, who devised the checklist, notes that scores of 12 or higher were found in a range of cases under review that had resulted in lethal outcomes.
218.Rather than asking, ‘what are the chances that violence will occur’, the question should be, ‘under what circumstances might violence occur and how might those circumstances be changed’. Effective risk assessment practices aim to pull prediction into management, to give a voice to victims and to integrate advocate advice.
219.In this matter, where the stakes are extremely high and the conflict has polarised the extended families, it would be unwise to discount the outcome of the risk assessment. The mother and children are assessed as being at significant risk of harm, particularly if the criminal proceedings should result in a negative outcome for the father (emphasis added).[24]
[24] Ibid [216]-[219].
Given the risks identified by Ms E,[25] a Senior Judicial Registrar ordered, in summary, that the children live with the Mother with the Father having professional supervised time for four (4) hours every Sunday and on special occasions, including the children’s birthdays, the Father’s birthday, Father’s Day and Christmas Day.[26]
[25] Ex Tempore Judgment of a Senior Judicial Registrar in Harendra & Veda (Federal Circuit and Family Court of Australia Division 2, SYC3939/2022, 27 October 2023) [47].
[26] Order of a Senior Judicial Registrar in Harendra & Veda (Federal Circuit and Family Court of Australia Division 2, SYC3939/2022, 27 October 2023) (‘SJR October Orders’).
The Father’s submissions
The Review was heard on 13 December 2023, taking the entire day.
The Father relies upon the following documents:
·Affidavit of Mr Harendra (filed 23 October 2023);
·Updated Affidavit of Mr Harendra (filed 4 December 2023);
·Child Impact Report of Ms F (filed 5 April 2023);
·The Court Book (filed 5 December 2023) (‘CB’); and
·The Father’s Tender bundle (‘FTB’).
Mr Ahmad, Counsel for the Father, relies upon lengthy oral and written submissions. He submits that significant weight should be placed upon the children’s views. Both children express strong views that they want to live with the Father, or at least spend significant time with him. He submits that the current arrangement is causing the children significant distress.
Mr Ahmad refers to several examples of X’s views, including paragraph 222 of the Single Expert report:
[X] explained that when her parents first separated, she and her brother had moved into refuge accommodation with their mother and had not been able to communicate or spend time with their father or any other paternal relatives. [X] said that this had been “a very hard time” for both her and [Y]. [X] said, “She took us away from our schools, our home and we couldn’t talk to Dad for like 2 months and then only under supervision.” [X] said that visiting her father at the Contact Centre had not been a good experience.
At the time X was interviewed by the Single Expert, she expressed that:[27]
I just want to live with Dad for the moment, it is a good environment and he is supportive of us and helps us with our homework and takes us to sports. When we are with Mum it doesn’t feel like a family. We just stay in our separate rooms and we don’t talk much.
[27] Single Expert Report (n 23) [226].
Towards the end of the hearing, Mr Ahmad informed the court that the Father had received a number of messages from X that afternoon expressing a desire to be with him — with the messages tendered as Exhibit ‘F1’. Ms Shea, for the Mother, immediately sought and received leave to issue subpoenas to X’s and the Father’s mobile phone carriers to determine whether the Father had encouraged X to send the messages. The first message is extracted below:
hi
last night mum was really telling us off and distracting us when we were talking to you – idk why she is like that and even said she wouldn’t give me dinner. I wish she would just leave us alone and let us talk to u in the barely any time we get
hi
The Father did not reply as required by the 27 August Order. The last text message received from X is extracted below:
we are so bored – [Y] just plays computer games all day, mum doenst care about what we are doing these holidays and is leaving us home alone all week and most of rest of holidays – christmas will be awful. we are scared of mum calling the police against us again as she has threatened but we thinking of run away today again and keep doing cos we don’t know what else to do.
Mr Ahmad submits that the Orders made by a Senior Judicial Registrar are not suitable for the children, and in particular X. He referred to five (5) instances when the children have run away from the Mother’s household since the Orders were made,[28] submitting that the children are acting on their desire to live with or spend significant time with the Father. As such, it is destabilising and contrary to their interests to ignore the children’s views.
[28] Case Summary of Mr Harendra, filed 11 December 2023 [4.9] (‘Father’s Case Summary’).
Mr Ahmad submits that the Mother’s behaviour creates significant conflict in the children’s lives, which explains the Children’s difficult behaviour in her care. Ms E effectively ignored this information, accepting without question, that provided by the Mother. This lack of objectivity and scrutiny undermines her report.
Mr Ahmad argues that the court should be sceptical of the Mother’s allegation that she is the victim of the Father’s family violence. In developing his argument, Mr Ahmad examined the genesis of her allegation. He referred to numerous pages of the domestic violence hotline conversation, a small extract of which is set out here:
Staff member: It’s very messy because he’s a toxic abuser so do you know the worst type of narcissistic abusers are the ones that are lawyers, doctors, police officers or people like in my field because they know the system and they know the knowledge and the on the outside are so charming because I’m a doctor.
Caller: Yeah
Staff member: They abuse their power so you’ve got probably one of the worst combinations and I’m so sorry to say this to you but I need you to hear me.
Caller: For my future, your honest advice would be the best thing would be to leave?
Staff member: Okay, I’m not going to lie to you. This is what I’m going to say.
…
Staff member: Intimate partner violence. You’ll go, oh my God, that’s me. So it’s 100 percent family violence. It’s very extreme and I think what you’re dealing with is one of the more dangerous presentations because I think he can go into very extreme physical violence if needed.
Caller: He’s much bigger than me. He’s much, much bigger than me
Staff member: He’s got so much – you’re probably one of the worst cases in the narcissistic abuse. If yours is pretty bad because you work together, you live together, he’s got cameras – I think he’s got cameras and apps stalking you so much more than you even know. [29]
…
[29] Court Book of Mr Harendra, filed 5 December 2023, 389-433 (‘Court Book’).
Mr Ahmad submits that the Mother’s allegations of family violence are formed during this phone call, where the Mother is provided with blatantly misleading and ultimately damaging information. This was the catalyst for her allegations, which she developed over the months that followed. He also referred to the Mother’s answers given under cross-examination in the Local Court proceedings where she claimed that she did not realise that she had been a victim of family violence until after separation.[30] It was contended that this was implausible given her education training and experience, and that the allegations arose conveniently after she took family law advice.[31]
[30] Supplementary Tender Bundle of Mr Harendra, dated 12 December 2023 [77]-[82] (‘Father’s Supplementary Tender Bundle’).
[31] Ibid 79 [35]-[50].
Consequently, the Court should reject her allegations as either erroneous, or at best, exaggerated. It follows that Ms E’s opinion must also be rejected, given that it was primarily based upon the Mother’s claims of family violence.
Mr Ahmad drew particular attention to Ms E’s use of the PPP Screening test as the foundation of her opinion that the Father poses a ‘serious threat’ and that the Mother and children are at ‘significant risk of harm.’ He submits that her use of this test and her conclusions are flawed.
He argues that it is unknown whether PPP is a peer reviewed and a widely accepted assessment tool that should apply across the board where there are allegations of family violence. Further, there is no evidence that Ms E has the expertise to utilise PPP or interpret its results, and she did not cross-check her results with other assessment tools to ensure the results are not skewed. Consequently, he submits, Ms E’s opinion must not be accepted — even at this interim stage of the proceedings.
In essence, Mr Ahmad submits that there is no reliable evidence to support the proposition that the children are at an unacceptable risk in the Father’s unsupervised care. The evidence in fact establishes that the children have thrived in the Father’s care, confirmed by the children’s clear views that they want to live with or spend significant time with him. As such, he argues, the children should, at a minimum, spend regular unsupervised time with him, with ideally X living with him and Y continuing in a shared time arrangement.
Mr. Ahmad also criticises the Order made by a Senior Judicial Registrar enabling the Mother be able to monitor the Father’s phone calls.[32] He submits that this creates further conflict, disrupts the children and allows the Mother to coercively control the Father.
[32] SJR October Orders (n 27) [9].
The Mother’s submissions
The documents relied upon by the Mother are as follows:
·Affidavit of Ms Veda (filed 20 October 2023);
·Updated affidavit of Ms Veda (filed 4 December 2023);
·Single Expert’s Report of Ms E (dated 18 September 2023);
·Single Expert’s Answers to Specific Questions (dated 9 October 2023);
·Child Impact Report of Ms F (filed 5 April 2023); and
·Documents tendered at Interim Hearing on 25 October 2023.
Ms Shea, Counsel for the Mother, submits that the Father poses an unacceptable risk of harm to the children and that the current Orders are in the children’s best interests.[33]
[33] Mother’s Case Summary (n 20) [21].
Ms Shea submits that the family violence allegedly perpetrated by the Father was both subtle and overt and can be characterised as coercive controlling and physical violence.[34] Ms Shea emphasises that due to the subtle and insidious nature of the Father’s behaviour, it was not initially recognised by the Mother as family violence, which explains the evidence that she gave in the local court.
[34] Mother’s Affidavit (n 3) [8].
Ms Shea further submits that any change to the Orders will result in the Mother’s relationship with the children being undermined. This is evidenced by the willingness of the Father to engage the children in the dispute and the quick deterioration of the children’s relationship with the Mother — particularly X — after she went into hospital in 2023. Ms Shea referred to a number of text messages between the paternal Grandmother and X, which demonstrate how the Father’s narrative — that he had been unfairly treated and that the Mother was to blame — was pushed on X by using phrases such as ‘truth will win soon’ and ‘brave girl’.[35]
[35] Court Book (n 30) 255-260.
Ms Shea submits that the Children have now settled in the Mother’s care and have been gradually repairing their relationship with her.[36] Should the children be removed from the Mother’s care, or there be any change in the current circumstances, there is a significant risk of undoing the good progress made in the last six weeks.[37]
[36] Mother’s Case Summary (n 20) [18].
[37] Ibid [19].
Ms Shea refers to the risk assessment set out in the Single Expert Report to highlight the risk the Father poses to the Mother and children. The risk assessment was explained in the Report as:
‘Risk Assessment involves the identification of risk factors and an estimation of the likelihood and nature of a negative outcome, while risk management puts in place strategies to prevent these negative outcomes from occurring or to minimise their impact. Qualitative risk analysis is the process of rating or scoring risk based on an assessor’s perception of the severity and likelihood of its consequences. Quantitative risk analysis is the process of calculating risk based on data gathered. Family Violence screening tools do not provide a definitive measure of risk. Risk factors may change over time and further assessment will need to be undertaken, should new information be presented. Risk assessment is thus not a precise art and it is considered best practice to err on the side of caution when discussing how best to protect children and vulnerable adults.’[38]
[38] Single Expert Report (n 23) [216].
The risk assessment undertaken concludes:
‘The classification of family violence that seems to fit best, given the history of the relationship, is that of Coercive Controlling Violence which is 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. According to the screening tool, the primary perpetrator of the abuse in this matter is identified as the father. [Note: the report writer again acknowledges that the allegations are yet to be tested in both the Criminal and Family Law proceedings.]’[39]
[39] Ibid [201].
In relation to the risk of harm to the children and Mother, the Single Expert states:
‘In this matter, where the stakes are extremely high and the conflict has polarised the extended families, it would be unwise to discount the outcome of the risk assessment. The mother and children are assessed as being at significant risk of harm, particularly if the criminal proceedings should result in a negative outcome for the father.’[40]
[40] Single Expert Report (n 23) [219].
Ms Shea submits that the Ms E has significant experience working with families impacted by family violence — including as a Family Consultant with this Court. Consequently, the Court must give her considered and detailed report significant weight at this interim stage of the process. The criticisms raised by Mr Ahmad is the type of inquiry that will occur at trial when all the evidence can be tested, but, acting cautiously, the Court cannot ignore the serious concerns raised by Ms E at this interim stage.
The Independent Children’s Lawyers (‘The ICL’) Submissions
Ms Bleier, for the ICL relied upon the following documents:
·Child Impact Report of Ms F (filed 5 April 2023);
·Single Expert’s Report of Ms E (dated 18 September 2023);
·Single Expert’s Answers to Specific Questions (dated 9 October 2023); and
·Documents tendered at Interim Hearing.
Ms Bleier largely adopts the submissions of Ms Shea and opposes the orders sought by the Father, submitting that there is a risk that the children’s relationship with the Mother will deteriorate if the children were to spend significant time with him. Further, the Single Expert’s opinion that the children will be at an unacceptable risk of harm in the Father’s unsupervised care cannot be ignored. The ICL supports professional supervision of the Father’s time at this stage.
The Law
In Marvel & Marvel [2010] FamCA 240, the Full Court of the Family Court of Australia discussed the problems associated with making findings on disputed evidence as follows:
as has frequently been emphasised interim parenting proceedings, and Orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting Orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting Orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).[41]
[41] Marvel & Marvel [2010] FamCA 240 [120].
In SS & AH [2010] FamCAFC 13, the majority (Boland and Thackray JJ) discussed the care to be exercised in making findings in interim parenting proceedings. Their Honours said:
In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.[42]
[42] SS & AH [2010] FamCAFC 13 [88].
Their Honours amplified their comments and said:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. 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.[43]
[43] Ibid [100].
Of this, the Full Court in Eaby & Speelman [2015] FamCAFC 104 said:
As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.[44]
51 Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
[44] Eaby & Speelman [2015] FamCAFC 104 [19].
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.[45] Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3). There are 2 primary considerations and 14 additional considerations set out in s60CC. I have considered each of those sections when determining this matter, but I will only refer, in these Reasons, to those sections that are most relevant to my determination in this case.
[45] Family Law Act 1975 (Cth) s 60CA (‘FLA’).
The presumption of equal shared parental responsibility is rebutted by virtue of the allegations of family violence, and the related charges that the Father is contesting in the Local Court.[46] As such, I am not obliged to consider whether equal time or significant and substantial time is reasonably practicable and, in the children’s best interests.[47]
[46] Ibid s 61DA(2), (3).
[47] Ibid s 65DAA.
Unacceptable risk
It is my task to ensure that the ultimate parenting orders do not place the children at an unacceptable risk of harm due to family violence, abuse, or neglect or exposure to the same. I may include orders as I consider necessary to achieve this end. Protecting a child from harm (or any unacceptable risk thereof) is intertwined with the paramountcy principle, as evident in s 60CC(2)(b). This includes any risk of family violence, abuse, or neglect.[48]
[48] FLA (n 46) ss 4AB (definition of ‘family violence’), 4 (definition of ‘abuse’), noting that the Act does not define ‘neglect’ for the purpose of s 60CC(2)(b), nor does it define ‘serious neglect’ for the purpose of sub-s(d) of the definition of ‘abuse’.
The question of unacceptable risk is aimed at ensuring that the terms of an order are consistent with a child’s best interests, in that, to the extent possible and foreseeable, the orders do not place them at risk of harm.
The assessment of whether a risk is ‘unacceptable’ does not require a court exercising jurisdiction under Part VII ‘to resolve in a definitive way the disputed allegation … as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence’.[49] The Full Court in Isles & Nelissen clarified that unacceptable risk is also not to be measured according to the civil standard of proof — on the balance of probabilities.[50] A trial judge may find past allegations proven on the balance of probabilities but find no unacceptable risk to a child. On the other hand, there may be no finding of past wrongdoing on the balance of probabilities, but there may be a positive finding of unacceptable risk.[51] It remains that any risk must be grounded on the evidence, which then informs a trial judge’s exercise of their discretion under s 65D by reference to the child or children’s best interests:
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant & Clayton (2019) FLC 93-924 at [52] is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment …, though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result …. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s.60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[52]
[49] M v M (1998) 166 CLR 69, 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Bant & Clayton [2019] FamCAFC 198, [38]-[41].
[50] Isles & Nelissen [2022] FedCFamC1A 97, [46]-[51], [86]; Bringinshaw v Briginshaw (1938) 60 CLR 336, 361-362 (Dixon J); Evidence Act 1995 (Cth) s 140 (‘EA’).
[51] Isles & Nelissen (n 51) [83].
[52] Ibid [85].
The question before me is, therefore, whether the children will, in the future (and on the basis of the evidence, including any fact or past conduct proven on the balance of probabilities), be at risk of exposure to family violence, abuse, or neglect, or some other potentially harmful conduct and whether that risk is ‘unacceptable’.[53] The enquiry involves ‘a real and substantial consideration of whether or not, and why or why not, particular facts raise an unacceptable risk’.[54] The parenting orders ultimately made, in those circumstances and if appropriate, can include measures to mitigate the type of risk as characterised.
[53] M v M (n 50) 77-78, at which their Honour state that ultimately, the court’s task is to assess the magnitude of risk and that ‘[a]fter all, in deciding what is in the best interests of a child’ a court of this jurisdiction ‘is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare’, and that ‘[t]he existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access’. I note also the first instance decision of McGuire J in Isles & Nellison [2021] FedCFamC1F 295, in which at [267] his Honour explains the ‘separate and predictive’ inquiry, based off “possibilities” in a prospective sense’, affirmed by the Full Court on appeal.
[54] Murphy & Murphy [2007] FamCA 795, [318]–[319].
The Children’s best interests: the s 60CC factors
The Act sets out two mandatory considerations at s 60CC(2). It is noted that s 60CC(2)(b) is to be given greater weight than s 60CC(2)(a). This means that the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect, or family violence outweighs the benefit to a child of having a meaningful relationship with both of their parents. The Act also includes a number of additional considerations under s 60CC(3), which will be considered insofar as they are relevant to this matter.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child's parents
The Act does not define ‘meaningful’. Characterising a meaningful relationship between a child and their parent is, necessarily, an individualised assessment.
The Full Court in McCall & Clark [2009] FamCAFC 92 endorsed the explanation of ‘meaningful relationship’ as given by Brown J in Mazorski & Albright [2007] FamCA 520:
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". I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.[55]
[55] Mazorski & Albright [2007] FamCA 520, [26]; McCall & Clark [2009] FamCAFC 92, [115].
A ‘meaningful relationship’ does not, however, have to be an ‘optimal relationship’. Kay J’s remarks in Godfrey & Sanders [2007] FamCA 102 more fully state this position:
It seems to me that the final conclusion reached by the Federal Magistrate that the proposed relocation would jeopardise the relationship between the children and their Father to an unacceptable extent was not at all consistent with the evidence that was before the Federal Magistrate. Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.[56]
[56] Godfrey & Sanders [2007] FamCA 102, [36].
I have no difficulty in finding that the children have a relationship with both of their parents that is meaningful and beneficial to them.
Ms Shea submits that the children love the Father and refers to the Single Expert’s statement that they ‘are likely to continue to do so, regardless of any Orders made…’[57] I agree. The express views of the children counter the Father’s claim that the children have been ‘alienated’ from him. Rather, it is the Mother’s relationship with the children that is more precarious, with the possibility of permanent estrangement should their relationship deteriorate.
[57] Single Expert Report (n 23) [303].
It is the position of Ms Bleier that the Orders made by the Senior Judicial Registrar on 27 October 2023 ‘promote the children having a meaningful relationship with each of their parents, to the best extent possible, in the midst of the ongoing dispute between the parties.’[58] I agree that the SJR’s Orders do not undermine the children’s deep relationship with the Father, and may well help rebuild their relationship with the Mother.
Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
[58] ICL Case Outline (n 2) [16].
Ms Bleier submits that the current arrangement of professionally supervised time remedies the risk set out in the Single Expert Report and the Child Impact Report.[59]
[59] Oral Submissions of Ms Bleier on 13 December 2023.
The Child Impact Report, at paragraph [31], states:
‘The Court Child Expert has significant concerns regarding the emotional wellbeing of both of the children due to their exposure to parental conflict and potential family violence. Exposure to conflict and family violence can have serious implications on the mental health of children and young people and it seems that the children have already suffered due to separation and various changes in their lives. It is of further concern that the children’s attitudes and behaviour towards their mother seems to have significantly changed recently and [Ms Veda] feels that she has no authority in the home. The change in the children’s behaviour could be due to a number of factors including their resentment for the changes that they have experienced. However, it needs to also be considered that there is a possibility that this is the result of the children’s exposure to family violence and there is a potential that they are mimicking behaviours towards their mother that they have been exposed to.’[60]
[60] CIR (n 4).
The PPP risk assessment conducted by Single Expert provides the following results:
The PPP risk assessment raised a significant number of red flags, indicating that a lethality assessment was warranted. This finding was commensurate with the DVSAT tool completed [in early] 2023, identifying 17 high risk DFV indicators. The checklist was utilised by the report writer to identify lethality indicators, with information obtained from the parents during the interviews. Information provided by the father did not raise concerns in regard to lethality; however, information provided by the mother scored a possible 25 out of 39, indicating a very high risk of lethality, falling into the ‘serious threat’ category.[61]
[61] Single Expert Report (n 23) [216].
In her letter, clarifying parts of her report, Ms E confirms her concerns:
The Single Expert would not recommend or support a change of residency to the father at this point in the proceedings for the following reasons:
•While the evidence is yet to be tested, risk assessments undertaken by a variety of professionals over an extended period of time have identified the father as posing a significant risk of harm to the children and to their mother. Information provided by the mother during the current assessment scored a possible 25 out of 39 on the Checklist, indicating a very high risk of lethality. falling into the ‘serious threat’ category.
•There is a small window of opportunity to repair and restore the relationship between [X] and her mother; however, this is unlikely to occur if the child remains living with the father, given the issues identified in the Single Expert Report. At this point in time, they still have a loving relationship; however, there is a good chance that the mother-daughter relationship will fracture if the current situation is allowed to continue. [X] would then become estranged from both her mother and her extended maternal family. This would come at a significant cost to the child’s emotional and psychological well-being and to her future development.
•The relationship between [Y] and his mother is likely to deteriorate should primary care be awarded to the father on an interim basis, given the issues identified in the Single Expert Report. It is predicted that this will come at a significant cost to the child’s emotional and psychological well-being, at a time when [Y] is already struggling.[62]
[62] Court book (n 30) 237-238. The Letter, dated 9 October 2023, is in response by Ms E to questions asked about the Single Expert Report.
Mr Ahmad submits that the findings of Ms E should not be given weight due to her lack of experience and impartiality. Ms Shea, however, submits that Ms E has significant experience, with her findings being of the same or similar view of the Child Impact Report and the New South Wales Department of Communities and Justice.
On the face of it, Ms E has relevant experience to undertake an assessment of this family and whether either party poses a risk to the children. She has previously practised as a Clinical Psychologist and was a Family Consultant for approximately 9 years for the Family Court of Australia.[63] Her report thoroughly considers the information available to her. Further, PPP was not the only assessment tool she used to determine the risk the Father poses to the Mother and the children as she compared her results with those of the DVSAT assessment undertaken in early 2023, as earlier extracted but I repeat:
This finding was commensurate with the DVSAT tool completed [in early] 2023, identifying 17 high risk DFV indicators. The checklist was utilised by the report writer to identify lethality indicators, with information obtained from the parents during the interviews. Information provided by the father did not raise concerns in regard to lethality; however, information provided by the mother scored a possible 25 out of 39, indicating a very high risk of lethality. falling into the ‘serious threat’ category.[64]
[63] Court Book (n 30) 235-236.
[64] Single Expert Report (n 23) [216].
Whether Ms E’s findings will withstand cross-examination at a final hearing is unknown, however, given the serious nature of the risks identified, acting cautiously and conservatively, the Court cannot, at this interim stage, ignore her opinion. As such, given the identification of the ‘serious threat’ that the Father may pose to the children, there is a need to protect the children from that threat.
Section 60CC(3)(a): any views expressed by the child, and the weight to be accorded to those views given their age and level of maturity
There is no universal rule for the weight to be afforded to the views of a child. It is ultimately a matter of discretion and, ultimately, this factor is one of several in the overall assessment of best interests. Importantly, as stated in Bondelmonte v Bondelmonte (2017) 259 CLR 662:
The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.[65]
[65] Bondelmonte & Bondelmonte (2017) 259 CLR 662, 673-674.
The Single Expert raises the importance of balancing the children’s views against any possible harm they may be subject to when in a risk environment:
In situations where a parent is assessed as posing a significant risk of harm (emotional, psychological or physical harm) to a child, then steps should be taken to address that risk, even in cases where a child may articulate a preference to live with the abusive parent. This is not something that the Court takes lightly and it will be important to balance the child’s wishes with the need to protect the child from harm.[66]
[66] Single Expert Report (n 23) [248].
The Court Child Expert, as part of the assessment for future decision making, states:
… There is significant concern that the children have knowledge of court dispute and are denigrating their mother and using terms that are not indicative of their age and stage of development. If the children are in fact exposed to inappropriate conversations during their time with their father, it may be more appropriate for time to be supervised by a professional agency. However, it also is considered that the children would experience emotional distress if their time with their father was decreased or altered significantly, given their expressed close relationships with him.[67]
[67] CIR (n 4) [37].
As to X’s level of maturity:
At 13 years of age, [X] is ill-equipped to make major decisions that will have last lasting consequences for her, including in regard to her relationships with her parents. Although her father and grandmother were quick to describe her as ‘very mature’, this is best explained as pseudo-maturity. This is a term used to describe children who act more mature than they are in order to gain peer approval or to cope with family problems. This may interfere with the development of real maturity, especially in cases where abuse is present or when children take over adult roles, leading them to experience role confusion.[68]
[68] Single Expert Report (n 23) [237].
Issues are also raised by the Court Child Expert in relation to X’s description of events:
Whilst [X] has expressed clear views in regards to her father, there is concern that the narrative she provided was very similar to the narrative that [Mr Harendra] and [Ms D] provided, and [X] recalled the same incidents as her father. It is acknowledged that [X] likely does have a close relationship with her father however she seemed very aligned to him and keen to dispute allegations against him, that she really should have no knowledge of… The significant changes that the children have experienced may be leading them to view [Mr Harendra] as the preferred parent given that he can provide them with the lifestyle that they are longing for.[69]
[69] CIR (n 4) [32].
The Court Child Expert continues:
It seems that the power imbalance needs to be considered between the parents when taking into consideration the views of the children as it is noted that the children are longing to live in their family home and go back to their previous lifestyle, which is understandable as these things are important to them at their young ages.[70]
[70] Ibid.
The assessment conducted by the Single Expert concludes:
The children are currently in a very difficult position, having aligned themselves with the father, to the point that they now risk becoming estranged from the mother. At this point in time, neither child is well-equipped to make considered decisions regarding the parenting arrangements and it is suggested that this should be taken into account when deciding how much weight should be accorded to their views.[71]
[71] Single Expert Report (n 23) [300].
Ms Bleier submits that the children may be ‘pitting’ the parents against each other. The children are aware that the parents are in high conflict and may be using this to their advantage. Ms Bleier submits that it is common for children to use parents against each other, especially in high conflict situations, and that the children may be testing the boundaries of the current Orders. Therefore, for the benefit of the children, Ms Bleier views the need for the parents to be seen as united so as to provide stability in the children’s lives — which in turn might improve their behaviour and their relationship with each parent.
On the untested evidence, I do not place great weight on the children’s views. I have concerns that their views have been influenced by the Father and that they do not have the level of maturity and insight to express views that meet their best interests.
Section 60CC(3)(b): the nature of the relationship of the child with each of their parents
As stated, I am satisfied that the children have meaningful relationships with their parents, but I am concerned that their relationship with the Mother is vulnerable and could be impacted by the Father’s negative influence.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect to the child from any separation from either of their parents
The Child Impact Report states:
It seems that both [Y] and [X] have struggled significantly with the various changes in their lives since the time of separation. Both of the children have had to move out of the family home and have had significant changes to their lifestyle, which seems to have been a significant disruption and has had an impact on their emotional wellbeing. Furthermore, the children have been exposed to police involvement, which has likely exacerbated their emotional distress.[72]
[72] CIR (n 4) [28].
The Report continues:
Given the risks raised in this matter, it seems that caution should be taken in changing the arrangement to unsupervised time until the level of risk to the children could be ascertained.[73]
[73] Ibid [36].
Given that X was contacting the Father during the hearing, it is clear that there remains some fragility in her relationship with the Mother. I am concerned that the Father has influenced X's negative view of the Mother and risks further deterioration of that relationship if the Father resumes spending significant time with her.
The children need a period of stability and certainty. To change the current Orders has the potential of inviting further chaos into their lives.
Section 60CC(3)(f): the capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs
For reasons already set out above, I hold concern as to the Father’s ability to meet the children’s emotional and intellectual needs. The untested evidence points to the likelihood that the Father has engaged on a campaign of undermining the children’s relationship with their Mother. If this is established at trial, it will be a significant matter to be considered when determining the long-term parenting arrangements for the children.
Section 60CC(3)(i): the attitude to the child and the responsibilities of parenthood demonstrated by each of the parents
Based on the untested evidence, I hold concerns as to the Father’s attitude to parenthood — particularly his ability to promote and foster the children’s relationship with their Mother.
Section 60CC(3)(j): any family violence involving the child or a member of the child’s family
The untested evidence raises the possibility that the Mother has been subject to family violence during the relationship. I do hold concerns in relation to the information that the Mother received from the domestic violence hotline counsellor. No doubt there will be a considerable examination of this interaction at trial. However, at this stage of the proceedings, I must take seriously the lengthy analysis and opinion of the Single Expert, who ultimately opines that the Father poses a serious risk to the Mother and the children. It maybe, on a full forensic examination of the Mother’s allegations of family violence and the advice and information that she received prior to making the allegations, that the basis of the Single Expert’s opinions will be found to be flawed. That, however, is a matter for trial. At this stage, the I cannot ignore the Single Expert’s warning that the Father poses a risk to his family.
Section 60CC(3)(k): if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account: the nature of the order; the circumstances in which the order was made; any evidence admitted in proceedings for the order; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
The Father has been subject to a family violence order and police charges. He is contesting those matters in the Local Court. The outcome may have relevance at the point of trial.
Section 60CC(3)(l): whether it would be preferable to make orders that would be least likely to lead to the institution of further proceedings in relation to the child
The children need a period of stability to repair their relationship with their Mother and settle while the litigation continues. I am satisfied that the Orders made by the SJR allow that to occur and are also protective of the Mother and the children.
Section 60CC(3)(m): Any other fact or circumstance that the Court thinks is relevant.
The Orders made by the SJR allow the children to settle into a far less tumultuous life than they endured through 2023. The Mother will have space to try and repair her relationship with the children, safe from potential harm. It is pleasing that the Father has fully complied with the Orders requiring him to return the children to the Mother when they have left her care. He must continue to show such insight and ensure that the children understand that he is bound to follow orders of the Court. Once the children accept that there will be no immediate change to the Order, and a level of stability will hopefully be maintained. The parties can then concentrate on finding the arrangements that best meet the children’s interests for the years ahead. That needs to be their focus.
The Father has concerns about the monitoring of his phone communication with the children,[74] however, given my concern regarding the Father’s negative influence upon the children, and some of the undermining language evidenced in the texts between the paternal grandmother and X, it is appropriate that the Mother be able to monitor the children’s conversations at this time.
[74] SJR October Orders (n 27) [9].
Conclusion
I am satisfied that the Orders of a Senior Judicial Registrar of 27 October 2023 meet the children’s best interests. That is not to say that there is no merit in the Father’s arguments, particularly as to the basis of the Single Expert’s report. Those arguments are, however, a matter for trial where a detailed forensic examination of the Single Expert Report and supporting information can take place. At this time, however, acting cautiously and conservatively, the court cannot ignore the opinion of the Single Expert who fears that to place the children in the Father’s unsupervised care could put them at an unacceptable risk. I am not prepared to do that. Consequently, the Father’s Application for Review will be dismissed.
I note that all parties agree that this case should be transferred to Division 1 of the Court. Given the lengthy and complex submissions received during this interim hearing, I have little doubt that this difficult matter will take longer than 5 days at trial. I will therefore order the transfer.
I certify that the preceding ninety-four (94) numbered paragraph is a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 19 January 2024
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