ILHAN & SETT
[2016] FamCA 319
•6 May 2016
FAMILY COURT OF AUSTRALIA
| ILHAN & SETT | [2016] FamCA 319 |
| FAMILY LAW – CHILDREN – Best Interests – Where the child has a meaningful relationship with both his parents – Where there is no evidence to support the mother’s belief that the child has been sexually abused in the father’s household – Where it has to be said that the child’s interview with JIRT was so flawed as to be unreliable – Where the father’s two friends who live with him do not represent an unacceptable risk of sexual harm to the child – Where there is some risk of psychological harm to the child in the mother’s household – Where the mother’s strongly entrenched views about the possibility of sexual abuse of the child in the father’s household create the risk of further allegations being made and the child being continually questioned to satisfy the mother’s need to have her fears allayed – Where the mother is the child’s primary attachment figure – Where the damage to the child of being moved into the father’s household and the distress that the mother would experience would likely be very much adverse to the child’s healthy development – Where the mother submits that will make an effort to support the child in his relationship with the father, particularly if she obtains professional assistance to do so – Child to live with the mother – Child to spend regular time with the father, after a short transition period FAMILY LAW – CHILDREN – Parental Responsibility – Where it is in the best interests of the child for the parties to have equal shared parental responsibility |
| Family Law Act 1975 (Cth), ss 60CC, 64B |
| APPLICANT: | Mr Ilhan |
| RESPONDENT: | Ms Sett |
| INDEPENDENT CHILDREN’S LAWYER: | Foat Associates Lawyers |
| FILE NUMBER: | NCC | 90 | of | 2012 |
| DATE DELIVERED: | 6 May 2016 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Cleary J |
| HEARING DATE: | 7-10 December 2015; 27 January 2016; and 3 March 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levick |
| SOLICITOR FOR THE APPLICANT: | Richardson Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Carty |
| SOLICITOR FOR THE RESPONDENT: | Legal Aid Bankstown |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Bithrey |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Foat Associates Lawyers |
Orders
That all previous parenting Orders relating to B born … 2011 (“the child”) be discharged.
That the parents have equal shared parental responsibility for the child.
That the child live with the mother.
That the child spend time and communicate with the father as follows:
(a) Until the child commences school:
(i)Each week from 9.00 am Monday to 4.00 pm Tuesday for eight occasions, commencing Monday 16 May 2016.
(ii)
Thereafter each alternate weekend from 10.00 am Sunday to
4.00 pm Tuesday, commencing 3 July 2016.
(b) From the commencement of school (in 2017 or later if agreed):
(i)During school terms, each alternate weekend from 9.00 am Saturday until return to school Monday.
(ii)For one half of each of the New South Wales school holiday periods, such half to be agreed between the parties, and in the absence of agreement, the first half of each even numbered year and the second half of each odd numbered year.
(iii)On the weekend of Father’s Day from 5.00 pm Saturday to return to school on the Monday after Father’s Day.
(iv)In the event that the child is due to spend time with the father on Mother’s Day, that period of weekend time shall not take place.
(v)At such other and/or additional times as agreed between the parties.
Communication
That each parent shall permit and assist the child to telephone the other parent at any reasonable time.
Changeovers
That unless otherwise specified in these Orders, or agreed by the parties, changeover for the child is to be facilitated as follows:
(a)The mother or her nominee shall deliver the child to, and collect the child from, the father or his nominee at Suburb C Train Station at the commencement and conclusion of each period of time.
Enrolment at school and education
That the mother may enrol the child at a school within proximity of her residence with the prior written consent of the father, which shall not be unreasonably withheld.
That the mother is to advise the father of the school in which she proposes to enrol the child by the commencement of Term Three of the 2016 school year (19 July 2016).
That the mother shall include the name, address and contact details for the father in the Enrolment Application for the child.
That the mother shall provide a copy of these Orders to the proposed school with the Enrolment Application.
That each of the parents may, subject to the rules and directions of the proposed school, attend all events to which parents are invited in 2016, including but not limited to Orientation Days at school for the child.
That each of the parents is restrained from changing the enrolment of the child at school without the prior written consent of the other parent.
That each parent is at liberty to communicate directly with the child’s school teachers, and other school authorities for the child’s progress at school and any problems being experienced by the child and to enable the child’s school records to show each parent as a person to be contacted in case of emergency and to include each parent on the mailing list for school reports and circulars normally provided to parents.
That each parent is to keep the other informed of all sporting, religious, educational and cultural events (which come to the notice of that parent) in which the child is from time to time involved (or which relate to the activities of the child, although the child himself might not be involved, for example parent/teacher interviews) and at which parents may attend and may be at liberty to attend.
Health and medical treatment
That each parent shall keep the other advised of any illnesses suffered by the child in the care of that parent.
That the parents are to nominate D Health in Suburb E as the child’s medical practice, unless another general practitioner or medical practice is agreed in writing between the parents.
That each parent is at liberty to communicate directly with D Health, or other nominated general practitioner or medical practice to be agreed between the parents in writing, in order to receive information and reports about the child’s health.
That unless there is a medical emergency, each parent is to take the child to D Health, or other nominated general practitioner or medical practice to be agreed between the parents in writing.
That in the event of a medical emergency for the child, each parent is to inform the other parent about the medical emergency as soon as reasonably practicable, and in any event within two hours of such medical emergency occurring.
That a parent proposing specialist medical advice and/or treatment for the child shall advise the other parent in advance of the intention to do so and of the relevant appointment dates.
Travel
That until further Order, or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975, each party, MS SETT (female) born … 1972 and MR ILHAN (male) born … 1965, their servants and/or agents be and are HEREBY restrained from removing or attempting to remove or causing or permitting the removal of the said child B (male) born … 2011 from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to this Order by placing the name of the said child B (male) born … 2011 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until the Court orders its removal, or with consent of all parties.
Specific issues
That each parent is restrained from denigrating the other parent, or members of their household, in the hearing or presence of the child, or allowing any other person to do so.
That each parent keep the other informed of their current residential address and contact telephone numbers and inform the other parent of any changes to contact details within 24 hours of such change occurring.
That if either party intends to change their place of residence, they shall provide the other parent with not less than two weeks’ notice of such intended change and inform the other party of their new residential address and contact telephone numbers.
That each of the parties is restrained from discussing these Court proceedings with the child.
That the mother is restrained from questioning the child about allegations raised in these proceedings and events in the father’s household.
That after a period of 28 days from the date of these Orders, a copy of these Orders and Reasons for Judgment shall be provided to the JIRT team who interviewed the child by a Registrar of this Court.
IT IS NOTED that publication of this judgment under the pseudonym Ilhan & Sett is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 90 of 2012
| Mr Ilhan |
Applicant
And
| Ms Sett |
Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
These are competing applications for parenting orders in respect of the only child of the parties; a boy now aged four years and nine months old
(“the child”).
The matter was heard within the Magellan Protocol, there being allegations raised by the mother of sexual abuse of the child by friends of the father.
The Parties
The parties were both born in Bangladesh.
The father is the applicant, aged 50. He lives on the Central Coast of NSW. He is health professional working on a permanent part-time basis. He has no other children.
The father’s household consists of himself and two long-standing male friends/companions, Mr F aged 68 (“Mr F”) and Mr G aged 76 (“Mr G”).
The mother is the respondent, aged 44. She lives in the South Western suburbs of Sydney.
Her household consists of herself and the child.
History of relationship and events leading to separation
The father arrived in Australia in 1989, aged 23. He became homeless.
In 1991 he met Mr F and was invited to share his accommodation on the Central Coast.
In 1992 the father obtained advice from an immigration lawyer. He applied for refugee status but that application was refused.
In 1993 he made an application for permanent residency in Australia on the basis of living in an “interdependent relationship” with Mr F. That application was granted in 2005/2006.
Both the father and Mr F clearly stated in these proceedings that their relationship was not a sexual one; it was close, affectionate and interdependent. The father confided to Mr F that he was under pressure from his family in Bangladesh to marry and that he intended to do so. Thereafter the father and Mr F lived more separate lives, although continuing to share accommodation.
In 2007 the father and Mr F travelled to Bangladesh and, by prior arrangement, had a meeting with the mother. She was then aged 35 years and divorced. Mr F thought the mother was “charming … lovely ... spoke very nicely … very nice”[1] and commended the father’s choice. The father married the mother and he shortly thereafter returned to Australia.
[1] Affidavit of Mr F filed 23/02/2015, par 9
The mother had previously been married. That marriage broke down in 2005. She has a daughter, now aged 18 years, who has continued to live with her own father in Bangladesh since the separation of her parents.
The mother waited in Bangladesh for three years for a spouse visa to issue for her to come to Australia. During that time she lived with the father’s family, in the traditional way of the parties’ culture.
Whilst the mother was being considered for a visa, a matter was raised with her by an Australian Immigration Officer. She was advised that the father had asserted in his own immigration application that he lived in an “interdependent relationship” with another man, Mr F.
The mother asserts that she challenged the father about this relationship, that he denied a homosexual character, and asserted that he had relied on this category of interdependence in order to obtain a visa in Australia.
The father asserts that the mother knew, understood and accepted his nature and circumstances and was content in a clear sighted way to marry him and come to Australia. She had met Mr F when he travelled with the father to Bangladesh for the wedding.
In 2009 the father met Mr G through work and invited him to share the home with himself and Mr F. Mr G accepted the invitation.
In May 2010 the three men moved to their current rented home on the Central Coast.
Mr G paid for immigration lawyers to assist the father with expedition of the visa application for the mother.
The mother alleges, and the father denies, that he is, and has been, the homosexual partner of both the other two men in his household. The mother has expressed religious and personal objections to homosexuality. During the course of the trial the father acknowledged his sexual preference but denied sexual relationships with his housemates.
The mother arrived in Australia in December 2010 and began living with the father in the property shared by the father with Mr F and Mr G. Whatever her state of knowledge about the father’s sexual preference, the mother was clearly confronted by the close, warmly and overtly affectionate relationships between the father and his two friends in the household. She felt subsidiary and humiliated.
Within weeks of arrival in Australia, the mother conceived the subject child.
The relationship between the parties struggled from the outset. By May 2011 it had broken down. The mother was deeply unhappy and withdrew emotionally from the household. She was protesting her position.
There was an incident of coercion where the father and one of his friends physically forced the mother to come inside the house. She had been sitting outside at night in the garden. The mother is diabetic. She was pregnant and the father was concerned about her health and risk to the unborn child. The father offered to pay for the mother to return home to Bangladesh and she accepted.
However on 12 May 2011, after three days enclosed in her bedroom without eating, the mother was taken to hospital by arrangement between the father and his doctor. This was the end of the marriage. The mother did not return to live with the father and after release from hospital moved to a refuge where the child was born three months later.
The mother applied for, and was granted, an apprehended violence order (“AVO”) for her protection from the father. On 4 August 2011 a final AVO was made which expired without incident.
The father did not know where the mother and child were living. He first saw the child when he was nine months old. The mother moved out of the refuge into supported accommodation in the local area.
On 25 August 2011 police attended the home of the father, arrested him, placed him in a caged truck, and conveyed him to a police station where he was charged with assault on the mother. The charge arose from the incident in the father’s home in May 2011.
On 27 January 2012 the father entered a plea of guilty to common assault and was convicted under section 10 and placed on a two year good behaviour bond.
The child has been seeing the father irregularly since early 2013, presently on a weekly basis for four hours, with restrictions as to who the child can be brought in contact with.
The two households are about 120 kilometres apart. The mother has very recently obtained a Drivers Licence and has begun driving locally. The father has a licence but is not confident to drive outside his local area.
History of litigation
On 14 November 2011 the father filed an Initiating Application in H Town Local Court. He proposed equal shared parental responsibility, for the child to live with the mother and for time to be spent with him in a plan building up from two hours most days, to blocks of hours several times a week by the time the child was 12 months old.
On 17 January 2012 the father filed an Initiating Application in the Federal Circuit Court (then known as the Federal Magistrates Court) seeking parenting orders. At that time, the father still did not know where the mother and the child were living.
On 16 March 2012 the parties attended a Child Dispute Conference with a Family Consultant.[2] The issues raised at this meeting were as follows:
Mother does not want [the child] to be in the father’s household based on religious and cultural grounds as she does not want [the child] to be exposed to what she alleges is father’s ongoing homosexual lifestyle.
Mother alleges father was physically and psychologically abusive to her.
Father alleges mother was psychologically abusive to him and on occasion physically abusive to the men in father’s household.
Father alleges mother has mental health problems and is ‘an angry person’ who is prone to outbursts and father does not want any direct communication between the parents.
Father wants an independent third party present at changeover and as a contact point for the father.
[2] Child Dispute Conference Memorandum dated 16/03/2012, page 1-2
At that time, both parties were proposing that the child remain living predominately with the mother.
The issues impeding resolution were serious ones, identified as follows:[3]
Parents do not communicate with each other at all.
Parents speak [Bengali] language. Each parent asserts that their own English is poor and they require a [Bengali] interpreter. The father asserts that the mother’s English is very good and that she merely pretends that her English is poor.
Father states he has a serious kidney condition and has been given five years to live.
Mother has a 13 year old daughter from a previous relationship.
Both parents have been married previously. There are enormous cultural and religious issues involved in this matter.
[3] Child Dispute Conference Memorandum dated 16/03/2012, page 2
The recommendation was that time between the child and the father should start as soon as possible, the father and child not having met at this point, probably at a controlled venue, such as a contact centre. The issues raised in that Memorandum four years ago were evident in the current proceedings.
On 19 March 2012 the father filed an Amended Initiating Application.
Interim Orders were made on 1 June 2012 and the parties were interviewed for a Family Report on 22 August 2012. The Orders of 1 June 2012 had not been implemented as the contact service identified in them was unable to implement the Orders.
On 30 August 2012 the Family Report was released. The issues in dispute were identified as follows:[4]
a)How to implement time between the child and the father;
b)The mother’s uneasiness about the nature of the relationship between the father and the other two men in his household; and
c)As a new issue, the mother’s wish to travel to Bangladesh with the child for holidays.
[4] Family Report dated 24/08/2012, pars 15-18
The child was observed to be a “happy and healthy child … developmentally within usual parameters”, with a “strong and healthy primary attachment” to the mother.[5]
[5] Family Report dated 24/08/2012, pars 27-28
A period of time between the father and the child was implemented by the Family Consultant during the course of the interviews for the Family Report. The Family Consultant highlighted the mother’s willingness to abide by court orders, despite her religious objection to the father’s household, and also the extremely limited time between the child and the father to that point.
The recommendations of the Family Consultant were that the parents share parental responsibility, that the child live predominately with the mother and spend gradually increasing time with the father. A detailed pattern of graduated time was set out.
On 21 September 2012 trial directions were made in the Federal Circuit Court.
On 6 November 2012 the father filed a Further Amended Initiating Application.
On 27 March 2013 final Orders were made, partly by consent and partly determined by the Federal Circuit Court. The significant Orders made by consent were that the parties would share parental responsibility, that the child would live with the mother and spend time with the father in a graduating pattern. Some aspects of time and other specific issues were determined on the day.
These Orders were implemented over the following five months. The child reached the point of spending overnight time with the father, after he turned two years of age (in August 2013).
After the child returned from his first visit overnight with the father, the mother asserts that she asked the child where he slept when he was with the father and the child replied, “I sleep in bed with [the father] and [Mr G]”. The mother reported that from this time on the child was more often sick, had nightmares and would wake up crying, saying “no, [father]”.
The father complained that the child was withheld at short notice, very often because the child was said by the mother to be “sick”. The father consulted the child’s doctor and the specialist he had been referred to.
In retrospect, it is clear the mother was avoiding sending the child for her own reasons, probably unrelated to the child’s health, at least most of the time. She was influenced by her fears about the safety of the father’s household.
In her oral evidence the mother confirmed that she had been worried about night time stays and possible abuse by “the gay couple”. She also had the fear that the child might come to accept open affection between two men as normal.
Allegation of sexual abuse of the child
In the second week of May 2014 the mother asserts that she was reading a book in her bedroom and the child was playing with toys next to her. She noticed that the child put his hand into the back of his underpants and was “trying to put his finger into his bottom”.[6]
[6] Affidavit of the mother filed 31/08/2015, pars 61-62
There followed a conversation in Bengali between the mother and the child. In her affidavit the mother says she questioned the child as follows:[7]
[7] Affidavit of the mother filed 31/08/2015, par 62
Mother: Why are you doing this?
Child: I am playing.
Mother: Do we play like this? Why are we playing like this?
Child: [Mr G] does this with me.
Mother: What did you do when he did this to you?
Child: I get hurt and I cry.
Mother: But he still kept doing it?
Child:He hit me. He said if you tell your Mum, I will do it again.
The child was then aged two years and nine months old.
There is no evidence of complaint by the child to the mother about being hurt or threatened prior to this conversation. She agreed orally that there had been no marks or bruises on the child indicative of hitting prior to this statement.
In cross-examination the mother provided different versions of this conversation and of the preceding events:
a)The mother said “there was a bad smell from the child’s finger, then I had to wash his hands”. This would suggest that the child had probably explored his bottom with his finger, unobserved by the mother. She said she told him he was “doing something wrong”.
b)In another version the mother said, “I saw him putting his finger inside his bum”. She then said, “When I saw him do this I said, ‘What are you doing? This is dirty! Why are you doing these things?’”
The oral evidence suggests that initially the mother was cross with the child for undesirable conduct, he recognised that he was in trouble, and excused himself by blaming others.
The mother, who had been fearful and vigilant for the possibility of sexual misconduct in the household of the father, seized on the words and situation. She was shocked and pressured the child for details, “Please tell me what happened. I am your mum. You have to share with Mum. Please tell me”.
In the witness box the mother conceded that it was only at that point that the child said “[Mr G]”. The child is also alleged to have said “[The father] didn’t do these things to me”, which I consider could mean “Don’t be cross with Dad”.
The mother did not examine the child herself, seek medical advice or do anything else for several days. This tends to support the mother being satisfied, although most unhappily, that she had the evidence of what she had long expected, but was not concerned that the child was actually hurt.
I conclude that the mother believed that there probably had been sexual abuse of the child but that there is no evidence to support that belief. It was in my view a misinterpretation by the mother arising from her own beliefs and fears.
On 26 May 2014 the mother told her support worker about “the conversation with [the child]”. I do not know what the worker was told. The support worker subsequently made a report to the Department of Family and Community Services (“the Department”).
On that same day, a Monday, the child was spending overnight time with the father, and was due back to the mother’s household on Tuesday morning. A police officer from the Joint Investigations Response Team (“JIRT”) spoke to the mother at 6.00 pm on the Monday evening and directed her to go and collect the child from the father’s home. The mother was unable to travel urgently, not being able to drive.
The police attended the home of the father that night, collected the child, and returned him to the mother’s care. The father, who had been told very little when he was spoken to that evening, preferred to have the police return the child to the mother rather than taking up the option which was offered, of leaving the home with the child and staying in motel accommodation close by in the local area.
JIRT interview of the child in May 2014
On 27 May 2014 JIRT arrived at the mother’s home and arranged to take the child for an interview. The mother asserts that she said to the child, before he was taken for the interview, “You can tell them everything. The police can help you”.[8] The child was dressed in a Spiderman suit and was equipped with a toy machine gun.
[8] Affidavit of the mother filed 31/08/2015, par 67
The child, then aged two years and 10 months old, was interviewed by JIRT with the assistance of an interpreter. The length of the interview was
42 minutes with no break. The child spoke in both English and Bengali interchangeably.
Viewing and listening to the tape, it was difficult to understand the child’s spoken English. His enunciation of certain letters and omission of others was confusing, for example, was he saying “Bad man” or “Batman”? Was “…” (so spelt in the transcript) a reference to “[Mr F]”? Was “…” a reference to “[Mr G]”? He was restless and, at times, keen to return to the mother.
The toy machine gun was not taken from him prior to the interview. The toy distracted him. The noise of it distracted the interviewer and interpreter. The microphone also interested and distracted the child. The interpreter made independent statements to the child, apparently in an attempt to reassure and focus him. It was unclear whether all those exchanges were fully interpreted. The child continued to respond to questions over the top of the interpreter after he had begun to interpret for the benefit of the police officer.
It was always going to be a difficult exercise to conduct an interpreted interview with such a young child, but it has to be said that this interview was so flawed as to be unreliable. A single expert subsequently appointed gave his opinion that the whole of the interview should have been conducted in Bengali, with police on headphones, and subsequently interpreted to English. Such a course would likely have been more reliable.
Statements of the child, interpreted in a way later successfully challenged, were at that time sufficient for JIRT officers to form the belief that Mr G and Mr F were relevant persons of interest.
The Magellan Report on this aspect states:[9]
During this interview, [the child] spoke of the “bad men” on a number of occasions and used the names [Mr G] and [Mr F] interchangeably with the ‘bad men’. However, it was very difficult to ascertain explicitly who [the child] was referring to as causing him the sexual harm and due to his age and language difficulties it was extremely difficult to gather further identifying information.
Suburb E JIRT have formed the belief that it is more likely than not that the “bad men” that [the child] is referring to pertain to [the] father’s house mates [Mr G] and [Mr F] and they are considered to be Persons of Interest in this matter.
[Suburb E] JIRT have substantiated these allegations, assessing that sexual harm has occurred. However, [Suburb E] JIRT were not able to formally identify a Person Causing Harm at this time given the difficulties [the child] had in expressing exactly who had harmed him during his JIRT interview.
[9] Magellan Report dated 26/09/2014, pars 12-14
It is apparent that JIRT officers struggled with the content of the interview but relied on the (incorrectly) interpreted statements as the best evidence they had.
On 2 June 2014 the father attended at the Department, Suburb E. A safety plan was put in place that the father would not bring the child into contact with Mr G or Mr F. The father made a statement to police and indicated that he did not believe the allegations.
On 6 June 2014 Mr G and Mr F were interviewed by police. The father also attended on that day.
The father was, as a practical consequence, unable to spend time in his own home with the child whilst ever Mr F and Mr G lived there.
No person has been charged.
Current application
On 8 August 2014 the father filed an Initiating Application in this Court seeking discharge of the parenting Orders made on 27 March 2013. He instead sought sole parental responsibility for the child and residence. An order was sought for substantial and significant time between the child and the mother.
Together with that application the father filed a Notice of Child Abuse and Risk. The alleged abuse was said to be as follows:
A person whose identity is not known has made an allegation to
[the Department] of the sexual abuse of [the child] … that [Mr G] and
[Mr F] have each digitally penetrated the anus of the child.The father did not consider that either of his companions had harmed the child and was unhappy with the outcome for the child and his household.
Father not compliant with the safety plan
On 18 August 2014 the father collected the child to spend time with him.
Mr G had driven the father down from the Central Coast for the meeting. It was a day of heavy rain. The mother became aware that the child was brought into contact with Mr G when he collected the father and the child in his car after changeover. This was in contravention of the safety plan.
The Department actively pursued that matter and the father returned the child to the mother. The father now concedes this as a mistake. It has had serious consequences for the father. There is no suggestion of harm to the child through that encounter.
Allocation to the Magellan Protocol
On 25 August 2014 the proceedings were allocated into the Magellan Protocol of this Court.
On 22 September 2014 the mother filed a Response seeking sole parental responsibility, residence for the child with her, and supervised time between the father and child, with continuing restraints on the child being brought into contact with Mr G and Mr F.
On 30 September 2014 the Magellan Report was received, setting out three Significant Risk of Harm (“ROH”) Reports:
a)18 October 2011: Caller concerned for baby who had fallen out of bed - issue co-sleeping (a reference to the mother and child);
b)26 May 2014: Child was observed to put his finger in his bottom, “I’m playing”. Conduct attributed to “[Mr G]”. Child waking in the night, “No Dad No” (these were reports made by or on behalf of the mother); and
c)18 August 2014: Father brought child in contact with person contrary to safety plan and undertaking (a reference to the father and Mr G).
The Department considered the child to be safe living with mother and not being brought in contact with “the Person of Interest [Mr G]”.
On 13 October 2014 interim Orders were made for the father to spend time with the child each Monday for four hours, with changeovers at Central Train Station, and a restraint on the child being brought into contact with Mr G and Mr F. A further Family Report was ordered.
On 24 November 2014 the further Family Report was released. The recommendations were as follows:[10]
a)That the parents ideally should share parental responsibility, but if not considered possible by the Court, that whichever parent the child live with should have responsibility for major decisions;
b)That the child should live with the mother;
c)That if the Court found that the child was not at unacceptable risk of harm in the father’s care, that he spend overnight time with the father on a weekly basis, until he started school, and then alternate weekends;
d)That in the event that the Court found that the child was at an unacceptable risk of harm from Mr G and/or Mr F, and that the father was unable to act protectively towards the child, that the child live with the mother and spend supervised time with the father on a weekly or fortnightly basis; and
e)That in the alternative, if the Court found that child was at an unacceptable risk of harm from Mr G and/or Mr F and that the father was able to act protectively towards the child, that the child live with the mother, spend time with the father and the father be restrained from bringing the child into contact with those two men.
[10] Family Report dated 21/11/2014, pars 102-106
On 18 December 2014 trial directions were made. The mother advised the Court that she would not be asking for a positive factual finding that the child was abused by any person, but was confining her case to the proposition that the child was at an unacceptable risk of abuse when in the care of the father. The hearing was set down for four days commencing on 7 April 2015.
On 16 January 2015 the father filed an Amended Initiating Application seeking sole parental responsibility, residence for the child with him and defined times between the child and the mother.
The father spent time with the child in accordance with the interim Orders of 13 October 2014 but not on every occasion. The father let the mother know of an overseas trip in February and March 2015 and on some occasions of illness and an inability to attend.
The final hearing is adjourned
On 7 April 2015 the hearing commenced. The JIRT interview with the child was played in Court. The problems identified in these reasons below were on display.
An application was made, by consent by all parties, for an accredited professional translator and interpreter to view the JIRT interview of the child of 27 May 2014 and prepare a transcript of that interview in English. The hearing was adjourned for that to happen.
On 13 April 2015 the mother asserts that Mr G was present when the child spent time with the father. He was in the area, but did not come into contact with the child. The mother was observing the contact period from a distance, which is a reflection of her inability to contain her anxious fears about the child’s safety.
On 30 April 2015 an Order was made for the appointment of a suitable expert. Fresh hearing dates were set for four days commencing in December 2015.
Between August 2015 and the date of hearing in December 2015, the mother asserts that the father cancelled visits with the child on many occasions.
The final hearing
The trial commenced on 7 December 2015. The evidence concluded in the allocated four days. Further time in January 2016 was allocated for submissions.
On 27 January 2016 the matter did not proceed as anticipated. The mother withdrew her instructions from her solicitor and counsel. The mother, who was legally aided, sought an adjournment in order to explore obtaining alternate legal representation. An adjournment was granted for three weeks. The expectation was that on the adjourned date the mother would advise the Court whether she would be legally represented or not when submissions were heard at a later date.
On 16 February 2016 the mother was present with a solicitor.
On 3 March 2016 all parties attended. The mother had again instructed the solicitor and counsel who had represented her in the trial. Submissions were made on that day and judgment reserved.
Evidence
The documents relied on in respect of the application were as follows:
The Father
(a)Father’s Amended Initiating Application filed 16/01/2015;
(b)Father’s Notice of Child Abuse and Risk filed 08/08/2014;
(c)Affidavit of the father filed 23/02/2015;
(d)Updating affidavit of the father filed 25/11/2015;
(e)Affidavit of Mr G filed 23/02/2015;
(f)Affidavit of Mr F filed 23/02/2015;
The Mother
(g)Mother’s Amended Response filed 30/01/2015;
(h)Affidavit of the mother filed 06/03/2015;
(i)Updating affidavit of the mother filed 31/08/2015;
Reports
(j)Affidavit of the Single Expert Interpreter filed 29/10/2015;
(k)Child Dispute Conference Memorandum dated 16/03/2012;
(l)Family Report dated 24/08/2012;
(m)Family Report dated 21/11/2014; and
(n)Magellan Report dated 26/09/2014.
Oral Evidence
The Single Expert interpreter
The Single Expert interpreter (“the Single Expert”) provided an English translation of the whole of the interview conducted by JIRT.[11] He was available for cross-examination on the first day of hearing. His evidence was enlightening.
[11] Exhibit 2
The Single Expert expressed the view that the child’s language in Bengali was more developed than in English and that he himself had found it difficult to make sense of sentences used by the child.
Critically, he gave evidence about the passage subsequently relied on by police to substantiate sexual abuse:[12]
[12] JIRT interview from 23 minutes, 19 seconds and following
…
Interviewer: We gonna finish up now – just one final one. [Reference to the child] before we were talking about the bad man and you pointed here. You said fingers. Is anything to do with the bad man about fingers?
Interpreter: What did he do with the fingers? What did he do with the finger?
The child:Raised it and (unclear: sounded like saying: stopped me)
Interpreter: Oh, they pushed the fingers in my … inside my body
Interviewer: OK
Interpreter: That’s who he said … sorry… aah … he said that they insert the finger in my body
Interviewer: Could you ask him whereabouts in his body?
The chid:(looking at the interviewer) don’t write on hand … in hand
Interpreter: … (showing the point finger on the right hand) where did he insert the finger?
The child:By raising it
Interpreter: Whereabouts?
The child:By raising it … raising it
…
The Single Expert gave as his opinion that the child was describing an adult raising a finger in command in a cautionary or admonitory way and that it was not the case that the child had been stating that a finger had been inserted into his body.
From that point the interview became a pursuit of who the “bad man” was who had inserted his finger into the child’s bottom, using a word interpreted to the child as “pokes” his finger rather than “raises” his finger.
As previously stated, the interview was fatally flawed, despite the best efforts of the interviewer, the interpreter and the child himself to understand what was being asked and said.
The mother did not ask for a finding of sexual abuse of the child and I am confident that no finding could safely be made arising from that interview with the child or at all.
The Father
The father was a calm and straightforward witness.
Considering all of the evidence, it has to be said that the father was naïve to imagine that the mother would be content to remain in a marriage with him in the circumstances outlined above. Apart from that naivety, the father presented as an intelligent and thoughtful person.
He conceded that the mother deserved praise for the care she had provided to the child and also credit for the good relationship that has developed and continued between the child and the father.
The father was asked about the possibility of moving from his home on the Central Coast in order to live closer to the mother and the child, with the obvious benefit of less travel for the child. The father was clear that he could not move to Sydney; he would be unable to cope financially and that further, he did not wish to give up the household which meant a great deal to him, both financially, as a sharing of expenses, and emotionally, through the support of his two friends.
Further, the father frankly stated that he would be unable to find work in the area in which the mother lived, an area which did not appeal to him. The father has lived on the Central Coast for the majority of the 26 years that he has lived in Australia.
The father conceded that the mother was not just concerned, but felt antipathy to Mr G and Mr F and preferred that the father move away from living with them. The father explained it this way:
We have feelings for each other. We have shared for a long time.
[Mr G] is like a father to me. Now they are getting old, how could I leave them on the street?Having heard all of the evidence, this statement by the father accords with the evidence of all three men that there are familial ties between them of deep affection.
The father also conceded that there had been poor communication between himself and the mother, but that they had been able to text each other satisfactorily on occasions when he had been unable to take up the opportunity to spend time with the child.
The father expressed genuine affection and reflected fatherly concern for the child. He was taken to the incident where police had attended his home after the allegation had been brought to the attention of JIRT in May 2014. The father acknowledged that police officers had told him that the child could stay with him if he removed himself from the household with the child into temporary accommodation. His response had been to tell the police that he thought it better for the child to return to the mother who was waiting in Suburb I.
He was pressed that it would have been less stressful for the child not to have to go with strangers (the police officers) on that occasion. However, the father’s answers suggested that he had been shocked, did not understand what the complaint was about his household, and had no money immediately for moving himself and the child into a motel. He wanted the opportunity to get some legal advice and he wanted the child to be safe with the mother until whatever it was that was being alleged had been made clear to him.
I do not consider that he was indifferent to the child’s needs and situation. A bolder personality may well have taken the child and moved to a local motel. However, the father presents as a subdued and somewhat hesitant personality.
The father has persevered with his relationship with the child despite an increasingly hostile attitude by the mother in the later part of 2014 and in 2015. His Amended Application seeking residence was, in my view, made to ensure that he could maintain that relationship and not punitively. I am also satisfied that the father would do his best to promote the relationship between the child and the mother.[13]
[13] Affidavit of the father filed 23/02/2015, para 103
Mr G
Mr G is 76 years old. He has been married and divorced and has two middle-aged children. He has been living with the father since 2010 and is committed to supporting his friend.
Mr G annexed to his affidavit his Record of Interview with police, conducted on 6 June 2014. He has at all times denied any wrongdoing in respect of the child and has maintained that position throughout those proceedings.
He presented as a dignified and candid witness. He has suffered as a result of his friendship with the father, but was not heard to make any complaint about the father or the mother.
He joined the household with the father and Mr F in May 2010 and together they were able to afford a four-bedroom home with a large backyard and swimming pool. Mr G supports himself with an aged care pension and from his savings from past employment.
His unchallenged evidence is that he was principally responsible for taking the mother to doctors’ appointments and related appointments on account of her diabetes, which condition became chronic during her pregnancy. He lent the father money in order to expedite the consideration of a visa for the mother.
After separation, and since the father restored his relationship with the child, he has taken on the role of driver for the father, transporting him to Sydney for occasions of contact.
The interview with police conducted in June 2014 proceeded on the basis of the report, clearly from the mother, that on 26 May 2014 the child had inserted his finger into his own bottom and when he was asked (by the mother) where he had learnt that, his response was “[Mr G] taught me and that is a game we play”.
In her affidavit, the mother stated that on a date in mid-May 2014 she was reading a book in her bedroom and the child was playing with toys next to her, when “I noticed that [the child] had put his hands into the back of his underpants and was trying to put his finger into his bottom”. She challenged the child:
Mother: Why are you doing this?
The child: I am playing.
Mother: Why are you playing like this?
The child: [Mr G] does this with me.
Mother: What did you do when he did this to you?
The child: I get hurt and I cry.
Mother: But he still kept doing it?
The child:He hit me. He said if you tell your Mum I will do it again.
In her oral evidence, the mother said something entirely different about this incident. She said that she had smelt a bad smell from the child’s finger and told him to wash his hands and that when she had seen him with his finger in the back of his pants had said to him, “What are you doing? This is dirty! Why are you doing these things?” The mother agreed that the child perceived that he was doing something wrong.
It seems apparent that if it is the case the child had his finger near his bottom, or inserted into his own bottom, there is more than one explanation for him doing so. What is clear is that the mother challenged him in a way that clearly suggested that he was doing the wrong thing and that there would be trouble. The statements from the mother about this incident informed the basis for the JIRT interview of the child and results have unfolded since.
I am confident that there is no evidence to support the child having been digitally penetrated by Mr G or any other person.
Mr G gave evidence that he had a grandfatherly role in the child’s life when he came to the home and that the child at all times called him “Dada”, the Bengali word for “grandad”, and that he had not called him “[Mr G]” at any time. He also said, and I accept, that when the child was at the home, the father cared for his needs, bathing and dressing him, putting him to bed and attending to his meals.
During his oral evidence, Mr G spoke of the child having free range of the house and being an active and energetic child, who sometimes approached him when he was in the kitchen cooking and was allowed to get a spoon and watch what was being done.
Mr G continues to drive the father to Sydney and drops him off at a street in the city from where the father walks down through J Park to meet with the child. He described his relationship with the father as “best of friends … confidant … closest of friends”. When asked whether he would move out of the home if the father requested that he do so he was quick to reply, “Yes I’d go”.
Mr F
Mr F is aged 69 and is a disability pensioner. He suffers from
short-term memory loss which he attributes to many years of drinking alcohol prior to 2006, when he gave up.
Mr F has been a close friend of the father for 25 years. In the early years, when he found the father homeless after an eviction, he assisted him with accommodation and in obtaining legal advice about regularising his immigration position.
Mr F’s evidence is that he and the father fulfil the criteria of the immigration department required for living in an “interdependent relationship” and that their relationship was one of intimate friendship; not sexual. Mr F understood the father’s decision to marry and they continue to share accommodation. Indeed, Mr F accompanied the father to meet the bride chosen by the father’s family for him.
The undisputed evidence of Mr F is that he enjoyed a good relationship with the mother when she lived in the household.
Mr F first met the child in 2012 when he accompanied the father and Mr G to Sydney to spend time with the child. He too attested to the father being the one who was solely responsible for the child’s needs when he was a visitor to the household and that the child ran around the home in playful way. He said the child referred to him as what sounded like “…” because he was unable to pronounce his name properly.
Mr F described himself as a man of quiet disposition, who for the most part keeps to himself in the home and did so when the child was present, leaving the father and Mr G to entertain and interact with the child.
Mr F annexed to his affidavit his interview with the police, which was conducted on 6 June 2014. He denied entirely the allegation that was put to him of the child being taught by him, or Mr G, to put his finger into his own bottom as a game. He maintained his position throughout the hearing.
Mr F also said that if the child came to live with the father and the father asked him to move out, he would.
He impressed as a quiet and reserved man. He described himself in this way:
I don’t like violence or argument. I would like [the child] to come to our place and run around like he did before. He’s a beautiful little boy, good natured. I’m truly hopeful he will be able to come back.
I consider that there is no evidence to support a finding of sexual abuse of the child by Mr F, nor that he represents an unacceptable risk of sexual harm to the child.
The Mother
The mother had on all occasions the assistance of an interpreter. She agreed that she was able to speak to her lawyers in English and could understand English in large part. I accept that under the stressful circumstances in which she found herself, the only way to do justice to her evidence would be through an interpreter.
The mother is 43 years old. She is a practicing in a religious faith.
She raises a religious objection to the practice of homosexuality. She reacted to the nature of the household when she first arrived in Australia and was unable to tolerate the close, intimate friendship of her husband with his two friends. Since then, she has been vocal about her opposition to the child being a member of the father’s household. It is apparent that she feared that he would be at risk in the household and was alert to the possibility of that harm from the time the child began staying overnight with the father.
There is a lack of logic to this fear. There is no basis for assuming that a person inclined to abuse a child would only do so at night.
The ultimate position of the mother, in submissions, was in the alternative. That if there was a finding of unacceptable risk in the father’s household, certain consequences would follow and that if there was no finding of unacceptable risk, then she proposed that the parties would share parental responsibility and that she, herself, would enrol in a course of psychological counselling in order to address her religious views on homosexuality and how she could work with the father to promote the child’s relationships with each of them, despite her feelings.
This proposal came at the commencement of submissions. The mother had withdrawn instructions from her solicitor and barrister when submissions were first due to be heard; subsequently re-instructing them.
I consider that the mother reached a point where she was desperate to find a way to keep the child in her care without relinquishing her position of the possibility of risk to the child in the father’s household.
The mother of course is entitled to hold the opinions she does about homosexuality. That is a matter for her. Many members of the Australian community share her views, however she has an obligation as a parent to promote and protect the relationship between the child and the father.
She does not consider that the father himself represents any risk to the child; rather she has focused on the two members of his household, especially Mr G, as being abusers. Again, there is a lack of logic about this position. If the mother is satisfied that the father is a competent and loving father, and she is satisfied that the child has at all times been safe and well-cared for in his household, the mother is holding onto beliefs which are unsustainable.
I take into account that the mother’s expectations of how her married life in Australia would be were quite different to reality, that she reached a point of despair and apparently reviewed all her previous positive knowledge and feelings about the father. It has taken time for her not only to learn English and understand Australian culture, but to accept that homosexuality is not a crime in Australia and that just as some people share her views about it, many do not. Finally, that her overriding obligation is to the child in his relationship with the father.
The mother has not always been compliant with orders; however on balance, I consider that she will comply once the possibility of a finding of abuse of the child, or unacceptable risk of abuse of the child, has been put to rest.
I accept her evidence that she wants the father to have a relationship with the child. Her expressed fear of the child being part of the father’s household is that he might come to accept the behaviour of the members of that household; I infer the mother means as ‘normal behaviour’. The mother will have to come to terms with the likelihood of the child accepting exactly that, through love, and affection for, the father and for his two friends in the household.
The Family Consultant
The Family Consultant was cross-examined. She had not seen the child and the parties since interviews for the Family Report in November 2014. That qualification was referred to more than once, given the age of the child and the significance of more than a year of his life having passed. Nevertheless, the view of the Family Consultant was that based on what she had seen, the child had had a very sheltered life with the mother, with whom he had his primary attachment.
The Family Consultant also stated that in the event the Court came to the conclusion that there should be a change of residence, a staggered approach slowly over time may not be appropriate given the likely emotional reaction of the mother to it, “slow transition would be too difficult”. She also referred to the child’s young age and close relationship with the mother, “he would miss her greatly”.
I commend the significance of these statements. This child has been in the care of the mother all his life. His parents have never lived together and there has been conflict between them, to a greater or lesser extent, throughout that short life. His attachment to the father is apparently in place, but the relationship between them somewhat weakened by the limited time presently being spent together.
Overall, I conclude that the Family Consultant held a firm view that unless the Court was satisfied that there was unacceptable risk of psychological harm to the child in the mother’s household, that he should remain living with her. Such a risk exists.
The mother’s strongly entrenched views about the possibility of sexual abuse of the child in the father’s household create the risk of further allegations being made and also, the risk that the child would again be continually questioned to satisfy the mother’s need to have her fears allayed. That is a real risk and if the mother was unable to control that when the child is older, it would likely be necessary for him to move to live with the father.
However, based on the evidence of the Family Consultant, the damage to the child of being moved and the distress that the mother would experience at his removal into the father’s household would likely be very much adverse to his healthy development.
The Family Consultant identified the mother’s perspective on the father’s household, “she sees the two men are the father’s family and [does not approve]”. The Family Consultant made a recommendation which ultimately made its way into the Minute of Order proposed on the mother’s behalf. That is, that the mother obtain advice and assistance from a suitably qualified person to help her to separate her own very negative views of the father and his household in respect of its homosexual character, from the separate issue of the important loving relationship the child has with the father and, to a lesser extent, the two other members of that household.
I take it that the recommendation was also for the mother to have somebody to assist her to come to terms with orders which would not support her view that the child had been abused, or even was likely to be abused, in such a setting, and to reset her thinking if she could.
If the mother were to take up that suggestion she will, in my view, have a much greater capacity to support the relationship between the child and the father and to come to understand that if there is no risk of harm from them, there is no reason to exclude the child from developing a relationship with the other members of the father’s household.
The proposition was put to the Family Consultant that it was either a lack of interest or lack of capacity in the father when he did not avail himself of the opportunity to take the child to a motel, rather than have the police return the child back to the mother in May 2014. She did not agree. She believed the course was a reasonable one and that the motel stay would have brought its own problems.
I agree. The father appeared to me to be entirely child-focused in that moment and felt that it was better that the child be back with the mother, his main source of security. The father’s actions allowed the child to return to the mother without any distress or disruption.
The Family Consultant’s recommendation, in the event that the Court found that there was no unacceptable risk of harm in the father’s care and in his household, was that the child have overnight time, on a weekly basis, until he started school, then moving to alternate weekends.
I am conscious that for such a young child, although overnight time on a weekly basis would certainly promote his relationship with the father, the travelling associated with it, particularly by train, would be long and burdensome and could be a deterrent to the child enjoying and looking forward to the time. On that basis, a short period of weekly time, then moving to alternate weekends with two nights, would appear to address this problem.
The Law
The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:
a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;
b)Children are protected from physical and psychological harm;
c)Children receive adequate and proper parenting to help them achieve their full potential; and
d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.
These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.
There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.
I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.
I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of this child.
Parental Responsibility
The presumption of equal shared parental responsibility can be rebutted in this case by past family violence in respect of which there was an AVO made for the protection of the mother and a conviction for the father. However, I am satisfied that the incident, which was very distressing for the mother of being forcibly brought inside the house, was completely uncharacteristic of events in the father’s household, was never repeated, and could not occur again in the future.
In this case, it is particularly important that each parent acknowledges the significance of the other parent to the child. Each has his and her own reasons for feeling wary and disappointed about the other party.
However, I have found that there is no unacceptable risk of harm to the child in the father’s household and that there is no evidence to support a finding of abuse by either of the members of the father’s household.
There is however some risk of psychological harm to the child in the mother’s household. Her fears having infected the child, and her disapproval of the father’s household, was part of the process which led to this child being interviewed at less than three years of age about an event which was in the first place, a misinterpretation by the mother. If the mother was to repeat fear-based questioning of the child, psychological harm would flow. I accept that evidence from the Senior Family Consultant.
However, I am balancing the need to preserve the child’s attachment to the mother, against that particular risk.
I conclude that the mother will make an effort to support the child in his relationship with the father, particularly if she obtains professional assistance to do so.
It will, in my view, assist the mother to have to consult with the father in order to discuss the long-term issues (religion, education and health) and to communicate about the day-to-day matters of possessions, school attendance and changes to arrangements, in order to understand that they continue to be parents of a child who loves them both.
Accordingly, an Order should be made for equal shared parental responsibility.
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
The child has a meaningful relationship with both his parents and there is a benefit to him of those relationships continuing.
Despite the changes to time that he has spent with the father, and more recently reductions to short periods of time away from the comfort of a home, the child has been able to hang on to, and enjoy, that relationship.
The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence
There is a need to protect the child from physical or psychological harm.
As discussed, an Order will be made restraining the mother from discussing these proceedings with the child and from questioning the child about events in the father’s household on his return from spending time with him.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
At age three when he was observed by the Family Consultant, the child was too young to express a view and would certainly not understand the significance of being removed from the care of the mother.
He was observed to respond well to the father’s very affectionate conduct - hugs and kisses. The child revealed that the mother had told him “don’t talk to [father]”.[14] The father most appropriately responded by telling the child that both he and the mother loved him.
The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)
[14] Family Report dated 21/11/2014, par 73
The child has his most important relationship with each of the parents and primarily, the mother.
Unfortunately the extended family on both sides do not live in Australia. Sadly, it will have to be the case that those family members, who are able to, will travel to Australia to see the child.
There is a real risk in this case of the child being able to travel to the parties’ homeland, which is not a party to the Hague Convention. I cannot rule out the possibility that the mother would not return with the child.
The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child
The mother has had the care of the child alone since birth. She has made difficult decisions about where to live, how to live and how to manage the child.
The father has at all times been interested to participate in the child’s life, but was prevented from doing so, initially through the circumstances of the parties’ separation and subsequently has been regulated by various court orders.
The mother has undermined time between the child and the father by being present at a distance so that when the child spotted her and called or ran to her, the time came to an abrupt end.
Both parents are committed to promoting the child’s interests.
The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child
The mother has provided for the financial needs of the child.
The father has paid child support and has at all times taken his financial responsibility to the child seriously.
The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person
The Independent Children’s Lawyer submitted strongly for a change of residence and I have closely considered those submissions.
I accept that the father is much more likely to warmly support the relationship between the child and the mother, than the mother has been willing to support the child’s relationship with the father. She has at times subverted it, warning the child not to eat food provided by the father and demanding that he report back to her all that happened during periods of time with the father.
I accept that there is a risk that the mother will go on questioning the child in the expectation of making further reports of abuse.
However, the child’s primary attachment and sense of security is with the mother and he is likely to be emotional injured by an abrupt removal into the father’s care, no matter how lovingly the father responded.
The household of the father is warmly affectionate towards the child. However he is not as closely familiar with the other two members of the household, who at 76 and 69 may now seem unapproachable. The two men are likely to be understandably wary of showing affection to the child after the events arising in this case. The child has been told by the mother they are “bad men”.
The likely effect of an increase in time between the child and the father in an unrestricted, unsupervised way, including overnight time, is likely to be positive and give the child an opportunity to broaden out his life experience and restore his relationship with the father.
The practical difficulty and expense of a child spending time with and communicating with a parent
The parties do live a considerable distance apart and neither of them is able to drive the whole distance. They will rely on train travel with changeovers at Suburb C Train Station.
It is possible, on a fortnightly basis certainly, and after a short period of four weeks, of re-building the relationship by weekly contact; fortnightly is the most appropriate pattern.
The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs
Each of the parents has the capacity to meet the needs of the child, both emotionally and intellectually.
The mother has a young adult daughter in Bangladesh and has clearly had more experience through raising that daughter of child raising, at least in the early years until her separation from her daughter’s father.
The mother has been in Australia for about five years, in circumstances which have been stressful and at times shocking for her. She has not had the opportunity to fully engage in the community and has been reluctant to spend too much time away from the child.
It is crucial that the child attends pre-school, engages with other children and has a range of experiences.
Both parents will be interested in ensuring a good education for him.
The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant
The child is a four year old boy. He will be five in August 2016 and be likely to start school next year.
His parents are both members of the same religious faith, both born in Bangladesh.
The mother actively practices her faith, but the child will learn from both parents about the history and culture of their home country and their shared religion.
The mother has taken responsibility for looking after the child in difficult circumstances; giving birth as a single mother alone, living in a refuge, finding accommodation, and contending with these proceedings.
The father has been unwavering in his commitment to the child, continuing with this litigation despite the Local Court proceedings which saw him plead guilty to an assault on the mother in circumstances where I am satisfied that he regarded himself as being protective towards her and their unborn child.
Any family violence involving the child or a member of the child’s family, and 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
There has been a family violence order made arising from the incident in
May 2011. That AVO expired without incident.
The child has not been exposed to family violence between his parents and it is extremely unlikely that he would in future.
Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child
There is a risk that the orders now being made, leaving the child living with the mother and building up time with the father, will lead to further proceedings, contraventions or a fresh application by the father.
However, the mother has strongly submitted through her counsel that she is willing to make every effort to support the relationship between the child and the father and not to bring her own antipathy to the father’s sexual preference to bear; rather that she will commit herself to supporting the relationship between the child and the father.
She must do so and not simply comply with the orders whilst remaining negative about the father and his household in her conversations with the child.
Because of the possible risk to the child emotionally and psychologically of removing him from the mother’s care, I have given that aspect greater weight in balancing those two risks. In the event that the mother did not live up to her commitment, a change of residence would likely be re-considered.
Conclusion
Orders will be made for the parties to have equal shared parental responsibility, for the child to live with the mother and spend time with the father on a regular, increasing basis, including overnight time and holiday time once he commences school.
Orders will be made restraining the parties from acting unilaterally and compelling them to consult and advise on actions that they take in raising the child.
The Orders reflect the father’s work pattern of having Monday and Tuesday off with flexibility for further change.
In the event that they develop a more trusting and respectful relationship, they will be able to vary orders by agreement. However unless and until that is the case, strict compliance with the Orders is required and essential.
I certify that the preceding two hundred and twenty six (226) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 6 May 2016.
Associate:
Date: 4 May 2016
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Procedural Fairness
-
Natural Justice
-
Injunction
0
0
1