HODA & PALLAVI

[2020] FamCA 44

FAMILY COURT OF AUSTRALIA

HODA & PALLAVI [2020] FamCA 44

FAMILY LAW – CHILDREN – Undefended hearing – Best interests of the child – Parental Responsibility – Where the father withdrew his application  – Where allegations the father has physically and sexually abused the four children – Where the father has significant mental health conditions – Where the Joint Investigative Response Team substantiated the allegations of sexual and physical abuse – Where the father has not spent time with the children in over four years – Orders made as sought by the mother and supported by the Independent Children’s Lawyer that the children spend no time with the father.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 60CA, 61DA, 65DAC

Briginshaw v Briginshaw (1938) 60 CLR 336
Deiter v Deiter [2011] FamCAFC 82
G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Johnson & Page [2007] FamCA 1235
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
M v M (1988) 166 CLR 69; [1988] HCA 68

Orwell & Watson [2008] FamCAFC 62
Ruth & Hutton [2011] FamCAFC 99
Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32

W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT: Mr Hoda

RESPONDENT: Ms Pallavi

INDEPENDENT CHILDREN’S LAWYER: Auslawyers

FILE NUMBER: PAC 699 of 2017

DATE DELIVERED: 28 January 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 18 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Sydney West Family Lawyers

SOLICITOR FOR THE RESPONDENT: Friend & Co Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Auslawyers

Orders

1. The children W born … 2009, X born … 2005, Y … born … 2008 and Z born … 2008 (“the children”) live with the mother.

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

3. The father spend no time with the children.

4. Pursuant to section 68B of the Family Law Act 1975 (Cth) the father is restrained from:

   (a)       Contacting or attempting to contact the children by any means including by a third party;

   (b)       Attending any school that the children attend;

   (c)       Attending any extra-curricular activities that the children attend; and

   (d)       Contacting or approaching the mother by any means.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hoda & Pallavi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 699 of 2017

Mr Hoda

Applicant

And

Ms Pallavi

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter concerns the long term parenting arrangements in respect of four girls. The oldest child is aged 14, there are 11 year old twins and a child aged 10.

2. The parties’ relationship was characterised by significant family violence perpetrated by the father towards the mother and children. The father suffers from ongoing mental health difficulties and has historically misused prescription medication and illicit substances. 

3. Following the breakdown of the parties’ relationship, all four children disclosed to the mother that the father had sexually abused them on a regular basis. Thereafter the mother ceased the children’s contact with the father and it was not until around a year and a half later that the father commenced proceedings seeking orders that he spend time with the children.

4. The mother seeks orders that she have sole parental responsibility for the children, that the children live with her, spend no time with the father and that the father be restrained from contacting she and the children. 

5. The Independent Children’s Lawyer (“ICL”) appointed in these proceedings supports the position of the mother.

6. The father was engaged in the proceedings and legally represented until 18 September 2019 when he withdrew his application for parenting orders. The father was given the opportunity to participate in the proceedings for example by cross-examining the mother and expert and making submissions but declined this opportunity and was excused from further attendance.

7. The mother and ICL sought that the Court proceed to deal with the matter to finality in the absence of the father. With the consent of the mother and ICL it was ordered that the application be determined in chambers on the evidence filed by the mother, the expert’s report and family report together with an outline of case and submissions.   

Background

1. The father who is 44 and the mother who is 39 commenced living together in a de facto relationship at some point in 2003.

2. In 2005 the first child (“the oldest daughter”) was born.

3. In 2008 the mother gave birth to twins (“the first twin” and “the second twin”).

4. In 2009 the fourth child was born (“the youngest child”).

5. The mother deposes to a long history of sexual, physical and psychological abuse perpetrated by the father towards her throughout the relationship. She describes the father forcing her to have sex with him, and describes how he would “go into rages” and direct his anger at her. The mother also deposes to the father’s extensive knife collection and to showing a particular knife to the children and saying words to the effect of “this is the knife I will kill your mum with if she leaves me.”

6. The mother also deposes to the father’s psychologically unstable state and describes herself as having been his “carer”. She describes how when the father was injecting dexamphetamine he would “watch porn continuously and not care for his personal hygiene or diet.” The father’s perpetration of abuse towards the mother and children and mental health difficulties will be discussed further in the context of disclosures made to the Department of Family and Community Services as they were then known (“the Department”). 

7. In May 2015 the father was hospitalised with a drug induced psychosis. 

8. After his hospitalisation the father left the family home and moved in with the paternal grandparents. The mother continued to visit the father during his periods in hospital and at his parent’s home.

9. On 23 June 2015, a Risk of Significant Harm report (“ROSH”) was received by the Department. The report contained allegations that there was significant domestic violence in the parties’ home exacerbated by the father’s poor state of mental health and addiction to prescription drugs. The ROSH report related to the risk of psychological harm to the children from exposure to family violence throughout the parties’ relationship including an incident where the father pushed the mother’s head through a wall. It was also reported to the Department that the father had threatened to the mother to cut his penis off and was admitted to a mental health unit. It was also reported to the Department that the mother had found material on the father’s phone relating to a plan to kill her. 

10. A few days later the Department completed a secondary assessment and closed the case due to “competing priorities.” It was noted that a report had been made to police and the mother was receiving support from a domestic violence service that could make a report if necessary to the Department.

11. The children last spent time with the father sometime in or around August 2015.

12. The father presented to the hospital emergency department with suicidal ideation on a number of occasions in July and August 2015. Hospital records document the father as reporting to staff on one of the occasions “the urge to hurt himself (by hanging) and hurt someone else so he can get proper help.”

13. Hospital records further document the father having presented to the emergency department again in September 2015 with severe anxiety. The records document that “[the father was] feeling nervous, palpitation, unable to stay still, has to pacing around all the time. He states that he wants to stab himself into the chest to stop the feeling and feels scared he would carry on his thought if he is home” (sic).

14. On 19 November 2015 another report was received by the Department relating to the risk of physical harm to the children from exposure to domestic violence.  The report detailed a history of physical abuse towards the mother by the father commencing when she was pregnant with the oldest child when the father pushed her through a wall and kicked her in the stomach.  It was also reported to the Department that the father had thrown knives into the wooden floor close to the children’s bare feet. The report further recorded that there had been occasions where the father had filled a water bottle with aftershave and squirted it at the children’s faces and at the mother when the children were making too much noise, causing the children’s eyes to swell.  It was also reported to the Department that the father hit the children with a walking stick.

15. Later in November 2015 the Department closed its assessment as the parties had apparently separated. Around this time also an Apprehended Domestic Violence Order (“ADVO”) was issued by the police for the protection of the mother from the father. 

16. The mother asserts that she considered the relationship over at some point in November 2015. She deposes that the children disclosed to her that the father had sexually abused them following the breakdown of the parties’ relationship.

17. In January 2016 the mother and children relocated with the help of a program run by the Department known as “Start Safely”.

18. On 20 February 2017 the father initiated proceedings in the Federal Circuit Court seeking orders that the parties have equal shared parental responsibility for the children and that the children spend substantial and significant time with him.

19. It appears that the mother first reported to the Department in June 2017 the children’s disclosures that the father had sexually abused them. The Joint Investigating Response Team (“JIRT”)[1] as they were then known conducted interviews with the four children at the time.  In these interviews the four children disclosed that the father had sexually abused them and reported that they had been told by their father not to tell their mother. Documents produced by the Department on subpoena contain the children’s reports of sexual harm including the following:

    During separate interviews all 4 children made disclosures of sexual harm whilst in the care of their father… The children’s disclosures were quite clear and consistent with his each other and the other and the initial report FACS received.

    All 4 children disclosed to being touched by [the father] on their chest, their bottom and their vagina (indecently and not penetration) and this usually happened after the children have a bath and are only in their towels. The children also disclosed on some occasions [the father] would ask them to get a lolly off him and when they did he would not give them a lolly but inappropriately touch them. During the interviews the children disclosed that [the father] would touch them regularly, at times their mother was home and other times their mother was out of the home transporting [the oldest child] to a sporting event.

    During [the oldest child’s] interview she disclosed that after [the father] inappropriately touched her, he asked her not to tell her mother (sic)

    [1] The Joint Investigation Response Teams were made up of officers from the Departments and police and investigated allegations of serious child abuse.

20. All four children also disclosed witnessing the father perpetrate physical violence upon the mother and reported that they had been the subject of physical abuse themselves. Documents produced by the Department on subpoena and tendered in the proceedings record:

    During the children’s electronically recorded interviews they disclosed being hit by [the father] with sticks which they described as a metal pole, a wooden stick and a solid cane. All 4 children disclosed [the father] would strike them with these implements across their back and their legs and arms. [The first twin] disclosed having a red face after [the father] hit her and on a separate occasion she had a bruise for 2 weeks. The children disclosed this happened frequently and at times he would hit them for no reason or for minor reasons such as the TV being too loud or making noise whilst eating. [The second twin] disclosed in her interview that she witnessed [the father] punch [the first twin] in the head when she was about 5 or 6 years old.

    [The oldest child] disclosed [the father] forced her younger sister’s finger into a flame and it got burnt and she has scar. The children further disclosed being sprayed in the eyes with aftershave and water by [the father].

    All the children spoke about [the father’s] knife collection, the children disclosed that he would throw knives at their feet, swung a knife in [the youngest child’s] face and chased [the youngest child] around the house with a knife.

21. The children’s disclosures in these interviews are matters to which I will return later in this judgment.

22. The mother also reported to the Department in June 2017 that she had been sexually abused by the father on several occasions and that she had found a website on the father’s phone where the father had asserted that he had sexually abused a baby and a 13 year old child. 

23. On 30 June 2017 the Department conducted a home visit and during the interview with the mother she reported that when she first met the father he was a drug dealer and that he had offered her drugs. She indicated that the father used steroids and dexamphetamine.  The mother also reported that the father had physically and sexually assaulted her.

24. The mother further reported during the home visit that the father had exposed the children to pornography.  She denied that she had witnessed the father touch the children in a sexual manner and said it was when the second twin told her a second time about being touched by the father that she then questioned the rest of the children about it.

25. The JIRT records indicate that the father was offered an interview to respond to the allegations but declined following legal advice.

26. On 9 August 2017 the mother filed a Response seeking orders that she have sole parental responsibility for the children, the children live with her and spend no time with the father. She also sought restraints against the father from contacting any school, community group, church or sporting association which the children attend.

27. On 17 August 2017, the JIRT substantiated (that is, found proved) the allegations of sexual harm of all four children. The JIRT also substantiated the allegations of physical harm to the children and it was determined that the physical discipline used by the father was considered to “bear no resemblance to reasonable discipline and was more likely to result in injury to a child.” The JIRT also determined that the children have experienced psychological harm due to “the pattern of terrorising behaviours which involve threatening the children with sinister punishment and developing a climate of fear.”

28. On 31 October 2017 the proceedings were transferred to the Family Court of Australia.

29. On 5 December 2017 the matter was placed in the Magellan list.[2] The Department were requested to furnish the Court with a Magellan Report[3] concerning the allegations made by the mother that the children had been sexually abused by the father.

    [2] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.

    [3] A Magellan report sets out the involvement of the Department with the family.

30. At a court event on 26 February 2018 it was noted that on the father’s own evidence he has had difficulties over the years with substance misuse and has been diagnosed previously with a drug induced psychosis. It was also noted that assessment of the level of misuse of illicit substances and prescribed substances was required and the father consented to an order for hair testing. The father was ordered to undergo hair testing and to file an affidavit annexing a report from his current practitioner in relation to his diagnosis, compliance with treatment and progress with respect to his mental health.

31. On 21 May 2018 the matter again came before the Court when it was noted that the father had participated in hair testing which indicated a negative result to all substances and that he had encountered difficulties in obtaining a report with respect to his psychiatric condition and treatment. It was agreed between the parties that a report should be obtained from a psychiatrist with respect to the father’s mental health condition and substance misuse prior to ordering a Magellan Family Report. Orders were then made with the consent of the parties on 3 December 2018 appointing an expert pertaining to the father’s mental health issues and substance misuse issues.

32. On 26 April 2019 the expert report was released to the parties and an order was made that the parties attend upon a family consultant for the preparation of a Magellan Family Report.

The Expert Report

1. In February 2019 the expert interviewed the father for the purpose of preparing a report in relation to his parenting capacity, mental health and the nature of the relationship between the father and the children.

2. The father told the expert that following surgery he abused codeine prescribed to treat his pain. In 2007 he was also diagnosed with a sleep disorder and began abusing medication prescribed for that condition.

3. The father informed the expert that he was first seen by a psychiatrist and first had psychiatric problems that he recognised in 2015 but had been treated with antidepressants for chronic low grade depression prior to this.

4. As noted the father suffered an episode of drug-induced psychosis in 2015 and was admitted to hospital for two months. Later in 2015 and in 2016 he was admitted to hospital for severe depression on two occasions. Following his discharge the father has had case management and ongoing follow up from a mental health service. He was apparently given “clearance” 18 months prior to meeting with the expert to the effect that he no longer needed ongoing mental health case care. During the follow up period his psychiatric care was managed by different psychiatrists and his chronic pain was managed by a pain specialist.

5. The father told the expert that he heard voices in his head when he was taking a particular medication, which he said was his own voice and also the devil whispering in his ear. In relation to these reports of auditory hallucinations, the expert opined “this indicated to me that there were psychotic symptoms and he perhaps still has some underlying vulnerability to psychosis because of his religious beliefs and hearing the devil may still be present, or at times may manifest.”

6. The father conceded that during his relationship with the mother there was “some pushing and shoving” but said there was no abuse. He described the mother’s allegations as “98.5%…bullshit” and said “Her family put her up to it. They put it into her head. They’re all lies.”

7. The expert also interviewed the paternal grandmother who told the expert that the father was improving, was more responsible and compliant with his medication and that previously he had “made himself very unwell.” The paternal grandmother was of the view that there should be a gradual introduction of the father’s time with the children and that she could act as supervisor at her home.

8. Based on the father’s history and description, the expert formed the view that there was evidence of a mild schizophrenic illness which appeared to be adequately under control with his current medication.

1. The expert opined:

   In terms of prognosis it’s likely that his chronic pain, chronic depression and vulnerability to psychosis is likely to continue although if he remains on medication and under the care of health professionals his conditions are likely to be controlled but not cured. He will for the foreseeable future need a mental health team to manage his mental health needs well to ensure compliance to medication as well as improving his living skills and emotional regulation.

2. The expert also opined that the father would benefit from having a psychiatrist overview his care and chronic pain, his chronic depression and psychosis and described it as a “complex mix.” The expert stated that the father requires a close mental health team approach to managing his complex health needs including a psychiatrist and perhaps a psychologist and/ or social worker.

3. The expert was of the view that the father did not have particularly good insight into his mental health problems as he informed the expert he does not believe he has schizophrenia.

4. The expert concluded:

   I would not recommend that the father could take care of the children overnight, I believe he would be able to care for the biological needs of the children for a short period of time. In relation to the psychological and social needs of the children the father would need great assistance. It’s not clear that he’d be able to protect the children from his anger and chagrin regarding the loss of the relationship with the mother… It would be difficult for him to contain his anger as he was relatively uncontained in the interview and his loud elevated voice and distress was difficult for him to manage. I believe he’d find it difficult to manage his concerns with the children.

5. The expert was of the view that the father’s mental health issues are of significant concern for his ability to care for the children. He further opined that if the Court found that there was not an unacceptable risk of physical, psychological or sexual harm to the children then some brief supervised contact with the father may be possible.

6. The expert opined that should the Court support the substantiated findings of JIRT and judge that the father is an unacceptable risk of harm to the children then then it should consider a no time order.

7. The expert who prepared the expert report in the proceedings is a specialist child, family and adult psychiatrist with other 25 years’ experience and extensive experience in preparing reports in the Family Court of Australia. His evidence was unchallenged. In such circumstances significant weight is attached to his views and conclusions.

The Magellan Family Report

1. On 23 July 2019 the parties and children attended upon a family consultant for the purpose of the preparation of a Magellan Family Report.

2. The contents of the Magellan Family Report are a matter to which I will return in detail when considering the best interests of the children.  At this stage some of the salient matters are set out to give context of the concerns of the family consultant about the welfare of the children in the care of the father.

3. At the time the family was interviewed the father had not spent time with the children since August 2015 but his proposal was still that the children spend substantial and significant time with him.

4. The father told the Family Consultant that he disagreed with the expert’s assessment of him having schizophrenia and indicated that he is prescribed an anti-psychotic medication to treat “very severe anxiety”.

5. The father told the family consultant that prior to separation “we were all unbelievably happy” and “my children adored me”.  He reported to the family consultant that he thought the mother had been “brainwashing” the children and said “give me one week with the girls, I will reinvent the brain wash their mother has done.”

6. The oldest child who was aged 13 at the time of the interview spoke very negatively of her father and without prompting detailed a range of allegations including physical and sexual abuse.  The oldest child described feeling fearful for the safety of her sisters and her mother.  She told the family consultant that she had started having “panic attacks” this year (2019), that her anxiety “peaked” when the parents separated, and she was scared the father would find her, her siblings and the mother and kill them.

7. The first twin who was 11 at the time of the interview told the family consultant that the father would shout at her and her sisters, hit them and that he spent a lot of time in his bedroom “talking to himself.”  The family consultant observed that the first twin appeared to become withdrawn and reluctant to respond to some questions about her experiences with the father.  The first twin explained that she felt worried that if she and her sisters were to spend time with the father that they would “end up getting hurt” and “experience painful things”.

8. The second twin said that when the father lived with the family “it wasn’t good”.  She recounted the father hitting her with a metal pole, “dangling” her over the balcony and chasing her through the house with a “flick knife”.  She described in similar terms to her sister remembering that the father had “bashed [the mother’s] head against the shower wall” and said that there was a dent on her bedroom door from another time the father hit the mother’s head against the door. The second twin also expressed the view that she would be afraid if she spent time with the father that he would hurt her, her sisters or her mother.

9. After the family consultant had interviewed the second twin, she was asked whether there was anything else she wanted to share about herself or her family.  According to the family consultant, the second twin appeared to withdraw and she said that there was something she wanted to say about the father but said “it won’t come out”.  The second twin then asked whether she could write down what she wanted to say and then proceeded to write “he touched us in private areas when we were going to have our showers.”

10. The youngest child who was aged 10 at the time of the interview also described how the father would hit and shout at the mother and also told the family consultant that the father would touch the children in places he shouldn’t.  She told the family consultant that when they told the mother, they moved out.  She also described incidents where the father started smashing plates and the children would lock themselves in their bedrooms. This child expressed the view in a similar vein to the other children that she would feel scared to spend any time with the father and reported concerns that the mother would be very worried.

11. The children were not observed with the father during the assessment as the family consultant considered that it was not in their best interests to reintroduce their relationships with the father given the severity of the allegations made against him.

12. Overall the family consultant observed that all of the children appeared to have a clear affinity with the mother and were strongly rejecting of a relationship with the father.

13. The family consultant was of the view that there are a myriad of possible risks and other factors that the Court may need to consider in determining the most appropriate parenting arrangements for the children.  She further opined that it was likely that these risks and factors are interconnected and the Court needed to consider the interplay of these in identifying the least detrimental option for the children’s parenting arrangements. 

14. On the other hand, the family consultant opined:

    If however, the court determines that [the mother] is purposefully undermining the children’s relationships by providing them with inaccurate information about [the father] than this may constitute psychological abuse of the children by [the mother].  Psychological abuse is known to be detrimental to children’s well-being and development and may raise concern about [the mother’s] will ability to prioritise the children’s needs above her own.  In this instance, consideration could be given to the children primarily living with [the father]. … 

15. The family consultant who conducted the interviews and prepared the report in these proceedings has extensive experience working in social work, counselling and as a family consultant in the Family Court system. In light of her experience and expertise, and given that her evidence is unchallenged in these proceedings, I accept her evidence and attach significant weight to her opinions and findings.

The final hearing

1. On 18 September 2019 the father withdrew his application for parenting orders. On this occasion he was given the opportunity to participate in the proceedings for example by cross examining the mother or making submissions but declined to do so and was excused from further attendance. With the consent of the mother and ICL it was determined that the application would be determined in chambers on the basis of the material filed by the mother and the expert report and Magellan Family Report together with the case outlines and submissions of the mother and ICL.

2. On this date orders were made pending further order that the children live with the mother, that she have sole parental responsibility for them and spend no time with the father.  Orders were also made restraining the father from contacting or attempting to contact the children by any means.  Judgment was then reserved.

Discussion: Risk of harm of sexual abuse and physical abuse

1. The mother contends that there is an unacceptable risk that the father may sexually abuse the children based on the children’s disclosures of sexual abuse.

2. In Deiter v Deiter[4] the Full Court explained in the context of interim parenting orders that risk assessment comprises two elements.  The Court said at [61]:

   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. 

   [4] [2011] FamCAFC 82.

3. In M v M[5] the High Court said when discussing allegations of sexual abuse at [23] – [25]:

   No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court 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. The 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. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….

   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 sexual 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 sexual abuse.

   [5] (1988) 166 CLR 69; [1988] HCA 68.

4. In M v M (supra), the High Court also said at [18]:

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

5. In Johnson & Page[6]  the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.

   [6] [2007] FamCA 1235 at [72].

6. The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[7] and will also be applied when determining the allegations issue of physical abuse in this matter.

   [7] See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).

7. I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk.  One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[8], where the Full Court noted at [111]:

   We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.

   [8] (2005) FLC 93–235.

8. The first question therefore is whether I am satisfied that the father sexually abused a child or the children on the balance of probabilities taking into account the matters set out in s 140(2) of the Evidence Act1995 (Cth).

9. In regard to this I attach significant weight to answers given by the children in the JIRT interviews conducted with the children in which each of them reported the father had sexually abused them.

10. The oldest child demonstrated an understanding of what constituted “truth” and what constituted a “lie” during the course of her interview and said that she had only told the truth during the interview. No evidence is available as to this issue in relation to the other children.

11. All of the children made disclosures of a similar nature and described such incidents occurring frequently. The oldest child indicated she had seen similar incidents occur with all of her other sisters to that which happened to her.

12. Records produced by the Department reveal that JIRT concluded the following:

    Sexual harm has been substantiated by … JIRT based on the children’s statements which were consistent and highly suggestive of sexual abuse. The abuse occurred when the children were physically and psychologically unable to resist or defend against their father, who at the time, was physically abusive of them and their mother. [The father] also has serious mental health issues which required hospitalisation and used violence as way of dominating the household

    Although the children were unable to give specific time frames for these events, consideration is given to their young ages at the time when these incidents first took place, that it has happened on a regular basis and it has been 2 years since the first time they made disclosures.

13. The documents from the Department also record:

    There are indications that [the father] groomed the children by deliberately exposing himself and demonstrated an escalating pattern of touching the children innocently and as part of the caring role to inappropriately (sic).

14. The father was offered an interview to respond to the allegations but declined following legal advice. A text message was received by the Department from the father in relation to the mother’s affidavit in which he denied the allegations.

15. At the date of the preparation of the Magellan Report in the court proceedings (24 January 2018) the records of the Department stated that the father had not been charged with sexual assault against his children due to the lack of sufficient evidence.

16. The father adduces no evidence in these proceedings in relation to the allegations.

17. Having regard to the matters set out in s140 of the Evidence Act1995 (Cth) as discussed earlier in this judgment, in particular the gravity of the allegation under consideration and the fact that the father has discontinued his application and therefore has not been cross-examined, I cannot positively find that the father sexually abused the children.

18. However, I am not required to make a positive finding of sexual abuse in order to determine the question of whether there is an unacceptable risk that the father may sexually abuse the children in the future. In this regard, the findings of the JIRT investigations are significant in that the disclosures made by the children lead to a clear belief for investigators that the children have been sexually abused and the substantiation of the children’s allegations.

19. I also have regard to the children’s disclosures to their mother and the family consultant. Particular weight is attached to the clear and consistent complaints made to JIRT investigators and the family consultant by all four children.

20. In my view there is a real possibility that the father has sexually abused all four children and would do so in the future should they spend unsupervised time with him.

21. In dealing with the second of the two issues referred to in Deiter (supra), it is beyond dispute that if the harmful events (sexual abuse) were to occur, the severity of the impact is of the highest order. The harms associated with children being the victims of child sexual assault are beyond doubt. 

22. For the foregoing reasons and having regard to the likelihood of sexual abuse and the severity of impact if that were to occur, I find that there is an unacceptable risk of harm to the children should they spend unsupervised time with the father.

23. The mother also contends that there is an unacceptable risk of harm that the father may physically abuse the children and that he poses an unacceptable risk to their psychologically wellbeing. Once again I attach significant weight to the disclosures the children made to the JIRT and family consultant that the father had perpetrated violence towards them and that they had been exposed to the father’s violence towards the mother. All four children maintained a consistent narrative when interviewed by JIRT and much later the family consultant which corroborated the mother’s evidence of family violence during the relationship.  For this reason I also accept the mother’s allegations of family violence and find that there is also an unacceptable risk of physical and psychological harm should the children spend unsupervised time with the father.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

1. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

2. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) are:-

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

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

2. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Benefit to the children in having a meaningful relationship with both parents

1. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[9] has approved the interpretation of the expression by Brown J in Mazorski & Albright[10] and has also agreed with the reasoning of Bennett J in G & C[11].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   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”.

   [9] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [10] (2007) Fam LR 518

   [11] [2006] FamCA 994

2. The subsection has not however been interpreted as creating a presumption that children do receive a benefit from having a meaningful relationship with both parents.

3. The Full Court said in McCall & Clark (supra) at [117]:

   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).

4. The Full Court in McCall & Clark (supra) continued at [122]:

   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 by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

5. The orders proposed by the mother and supported by the ICL provide that she have sole parental responsibility for the children and that the children live with her. She also seeks a specific order that the children spend no time with the father. Accordingly, if orders are made in these terms there would be no provision to foster a relationship between the children and their father.

6. While neither the mother nor the ICL seek a specific finding that the children will not receive a positive benefit from having a relationship with their father, the children have not spent any time with him in over four years and have all expressed their significant fear of him. It is clear that the children’s relationship with the father at this stage is extremely fractured. Further, the father must be taken through his withdrawal of his application to spend time with the children to accept that the children do not receive any benefit from having a relationship with him.

The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. The second of the primary considerations looms large in these proceedings given the serious allegations of physical and psychological harm perpetrated by the father towards the children and mother.

2. The unacceptable risk is that the children may be seriously harmed by future physical and sexual abuse at the hands of the father and also exposure to family violence.

3. All four children disclosed to the family consultant and as part of the JIRT investigations the physical harm they were subjected to and witnessed the father perpetrate towards the mother. These allegations of physical harm perpetrated towards the children were substantiated by JIRT who concluded “the physical discipline used by [the father] was considered to bear no resemblance to reasonable discipline and was more likely to result in injury to a child.”

4. Psychological harm was substantiated by JIRT “due to a persistent pattern of terrorising behaviours which involved threatening the children with sinister punishment and developing a climate of fear and threat. Furthermore, there was a pattern of abusive power and control that the children witnessed, experienced and were aware of.”

5. The family consultant who prepared the Magellan Family Report in the proceedings opined:

   If the Court finds veracity to [the mother’s] allegations, the children’s allegations in the JIRT substantiations, that [the father] has engaged with the children in a manner that may have compromised their safety and wellbeing, then this may have contributed to the children becoming realistically estranged from [the father].  If the Court determines that [the father] has engaged in abusive behaviours towards the children, then it may indicate that he has difficulties in prioritising the safety and wellbeing of the children and may demonstrate very limited capacity to reflect on the children’s experiences. In the circumstance that the Court determines that [the father] has engaged in such a manner, then it may be necessary to protect the children from possible physical and/or emotional harm by considering orders that provide for the children to spend no time with [the father].  …

6. It is possible that the father’s violence towards the mother and children may to some extent be related to his long history of significant mental health difficulties as have been outlined earlier in this judgment. I attach significant weight to the views of the expert in relation to the father’s parenting capacity, mental health and the nature of the relationship between the father and the children. After meeting with the father and reading material from the court proceedings the expert formed the view that the father’s mental health issues are of significant concern for his ability to care for the children.

7. The expert opined that if the Court accepted the substantiated findings of JIRT and judged that the father is an unacceptable risk of harm to the children, a no time order should be considered.

8. The expert concluded:

   In light of the substantiated abuse allegations and serious mental health concerns I would not be able to recommend any contact and it’s difficult to see how the father could find any role or at best an extremely limited role. In addition the mother’s fear and anger towards the father from rereading her affidavit is also a major obstacle for any healthy contact. The father would need to have undergone great improvement with mental health treatment and commitment with mental health support to be able to have any prospect of contact with the children.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children and factors underlying those views

1. All four children presented to the family consultant as strongly rejecting of a relationship with their father. All the children presented as having a clear affinity with the mother.

2. The children were aged 13, 11 and 10 at the time they were interviewed by the family consultant. Each provided detailed accounts of the father’s physical and sexual abuse towards them. Having regard to the age of the children and the detailed and consistent accounts provided by them, I adopt the position of the mother that the views of the children should be given substantial weight.

Nature of the children’s relationship with each parent and other significant persons

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

1. It is beyond dispute that the children’s relationships with their father are extremely strained having not seen him in over four years.

2. The family consultant observed that the children appeared to have a close relationship with the mother and that the mother during observation had engaged with the children in a “child focussed” manner. The family consultant opined “the children and [the mother] sought close proximity and physical affection, and, during activities played together, there appeared to warmth and enjoyment in the children and [the mother] spending time together (sic)”.

3. The mother has been the sole carer for the four children since August 2015 and has been their primary carer since birth. She has acted in a protective manner in removing the children from a high risk environment and has provided for their needs on her own.

4. The mother deposes that the children have the support of her extended family and are close to their cousins and their grandparents. She asserts that they see the children see this extended family regularly including weekend and school holiday time.

5. The father has been unemployed for over a decade and relies on a disability pension. It does not appear that he provides any child support to the mother for the four children.

6. At the time the father commenced proceedings he had not seen or communicated with the children in around a year and a half yet sought orders that if made would see him spend substantial and significant time with the children and have equal shared responsibility for them. The father maintained this position from the commencement of proceedings up until his total withdrawal from the proceedings. The father’s behaviour in this regard is a salient feature in this dispute as by withdrawing from the proceedings completely and not seeking orders at the very least to spend some supervised time with the children or in relation to parental responsibility he can be taken to have forfeited his interest in participating in their lives in all respects.

Likely effect of change in the children’s circumstances

Capacity of each parent and any other person to provide for the children’s needs

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. The mother’s proposal as supported by the ICL would see no change to the children’s current circumstances. The mother would continue to exercise sole parental responsibility for the children who will continue to live with her.

2. An order providing that the children spend time with the father would be significant given the children have not spent time with him in over four years and all indicated strong resistance to do so. The father’s history of mental health difficulties has been canvassed earlier in this judgment and according to the expert relates directly to the father’s capacity to provide for the children’s emotional and intellectual needs. The expert’s opinion that it would be necessary for the father to have undergone great improvement with mental health treatment and commitment with mental health support to be able to have any prospect of contact with the children supports a conclusion that the father does not have the capacity to provide for the children’s needs.

3. The mother has demonstrated a mature and proactive attitude to the responsibilities of parenthood. Following separation she participated in a course on family violence to help her understand the dynamics of family violence and sexual abuse within families. Further, she has facilitated the older children attending counselling which she said to the family consultant has seen the children “starting to shine, their personalities are coming through. Before they didn’t shine, they were like abused little girls”. The mother also herself engages with a counsellor occasionally when she feels she needs additional support.

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent

1. The father is a practicing Muslim. The mother deposes that the children have never practiced Islam and rather attend church in her faith most Sundays. The children will be able to continue to participate in their religious practices in the mother’s care.

Family violence relating to the children or a member of the children’s family

1. Family violence is broadly defined. The father’s perpetration of abuse towards the children and the mother easily falls within this definition. The father’s perpetration of violence has been discussed at length earlier in this judgment.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

1. Having regard to the father’s withdrawal of his application in the proceedings, orders that would be least likely to lead to the institution of further proceedings would be those sought by the mother.

Conclusion

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to the child.”

3. In Goode & Goode[12] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [12] (2006) FLC 93-286

4. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)). As explained I have reasonable grounds to believe that the father has engaged in family violence so the presumption does not apply.

5. The mother is the only parent engaged in the proceedings and she seeks sole parental responsibility. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the mother must mean that she would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the father would have none of the duties, powers, responsibilities and authority with respect to the children. As the father is completely disengaged from the proceedings it would not be proper for any orders to be made for him to be involved in the exercise of parental responsibility.

6. Having regard to all of the shortcomings in the father’s parenting capacity, the potential risks posed by him as discussed, the complete absence of any current relationship between he and the children and his disengagement in the proceedings I am also of the view that it is proper and in the children’s best interest to make an order that the children spend no time with him and the balance of the orders sought by the mother. Given the gravity and multiplicity of the risks posed by the father I am also satisfied that the restraints proposed against the father are appropriate for the welfare and protection of the children.

7. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding one hundred and thirty seven (137) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 January 2020.

Associate: 

Date:  28 January 2020