IMBER & IMBER

[2013] FCCA 1722

FEDERAL CIRCUIT COURT OF AUSTRALIA

IMBER & IMBER [2013] FCCA 1722

Catchwords:

FAMILY LAW – Parenting – interim– two children aged three years and 20 months – competing live with applications – children retained by Father post-separation – capacity of each party to parent – children returned to Mother and day time periods with the Father - urgent assessment ordered.

Legislation:

Family Law Act 1975, ss.4, 4AB, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FLC 93-286

Applicant: MR IMBER

Respondent: MS IMBER

File Number: SYC 5246 of 2013

Judgment of: Judge Sexton

Hearing date: 9 October 2013

Date of Last Submission: 9 October 2013

Delivered at: Sydney

Delivered on: 18 October 2013

REPRESENTATION

Solicitors for the Applicant: Watts McCray Lawyers

Solicitors for the Respondent: Legal Aid NSW

THE COURT ORDERS PENDING FURTHER ORDER THAT:

1. The Father deliver the children to the Mother at (omitted) police station at 7.00 p.m. today.

2. The children, X, born (omitted) 2010 (aged 3 years) and Y, born (omitted) 2012 (aged 20 months),  live with the Mother.

3. Until the Mother completes her (omitted) course in November 2013, the children spend time with the Father as follows:

   (a)Each Monday and Wednesday afternoon, commencing Monday 21st October 2013 when the Father will collect the children from day-care/pre-school by approximately 3.30 p.m. and return them to the Mother at 6.00 p.m. and changeover will take place at KFC (omitted), or such other agreed venue proximate to the Mother’s home (noting the Mother may move her residence closer to the Father’s home in November 2013);

   (b)Each Saturday afternoon, commencing Saturday 26 October 2013, from 1.00 p.m. until 5.00 p.m when changeover will take place at KFC (omitted) or such other agreed venue proximate to the Mother’s home (noting the Mother may move her residence closer to the Father’s home in November 2013); and

   (c)At any other time by agreement between the parties. 

4. From the commencement of the first week after the Mother has completed her (omitted) course until the end of school term 4, the children spend time with the Father as follows:

   (a)On the two afternoons each week that Y then attends day-care when the Father will collect the children from day-care/pre-school at approximately 3.30 p.m. and return them to the Mother at 6.00 p.m. and changeover will take place at KFC (omitted), or such other agreed venue proximate to the Mother’s home (noting the Mother may move her residence closer to the Father’s home in November 2013);

   (b)Each Saturday afternoon from 1.00 p.m. until 5.00 p.m when changeover will take place at KFC (omitted) or such other agreed venue proximate to the Mother’s home (noting the Mother may move her residence closer to the Father’s home in November 2013); and

   (c)At any other time by agreement between the parties. 

5. During the 2013/2014 Christmas school holidays, the commencement of the children's time with the Father on the two weekdays referred to in Order 4 be varied so that time commences at 1.00 p.m, rather than 3.30 p.m. and the Saturdays continue 1.00 p.m. to 5.00 p.m. 

6. X have telephone communication with the Father between 6.00 - 6.30 p.m. on Monday, Thursday and Sunday evenings when the Father will telephone the Mother and the Mother will help X take the call.

7. Each party have responsibility for decisions as to the children’s day to day care, welfare and development during periods when they are in that party’s care.

8. Each party ensure that X continues to attend (omitted) preschool from Monday to Thursday each week.

9. Each party ensure that Y continues to attend (omitted) of (omitted) long day care on Monday-Thursday each week until 3.30 p.m. or 3.00 p.m. if practicable, until the Mother completes her (omitted) studies in November 2013 and thereafter Y attend day care on two days each week, precise days to be nominated by arrangement with the Day Care Centre.

10. The parents will both be entitled to attend all events involving the children including:

    (a)Extra curricular activities that allow for parental attendance;

    (b)School functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions;

    (c)and the parent who has the children in their care on the day of such activity will be responsible for their day to day care at such event and the children’s transportation to and from that event.

11. Each party ensure that the other party is kept informed of:

    (a)Any medical problems or illnesses suffered by the children while in that party’s care;

    (b)Any medication that has been prescribed for the children;

    (c)Any social, school or religious functions which the children are to attend;

    (d)Each other’s residential address and particulars of other persons who may reside with the children; and

    (e)Any other matter relevant to the children’s welfare.

12. Each party keep the other informed as to their respective residential address and telephone contact details and to advise immediately of any change of address or telephone number.

13. That during any period referred to in these orders, in the event of the children being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

14. Each party be restrained from using any form of physical discipline on either child.

15. Each party be restrained from yelling or screaming at the children or in their presence.

16. Each party be restrained from leaving either child unsupervised by a responsible adult.

17. Each party be restrained from taking X to Mr O or any other psychologist or therapist without the prior written consent of the other party. 

18. Each party personally supervise the children while the children are in that party's care, unless an emergency or the children are in day care or preschool.

19. Each party be restrained from making any negative comment about the other party in the presence or hearing of the children.

20. Each party be restrained from entering the boundaries of the other party's residence without the prior consent of that party. 

21. Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5246 of 2013

MR IMBER

Applicant

And

MS IMBER

Respondent

REASONS FOR JUDGMENT

Introduction

1. These interim proceedings short listed before me last week concern parenting arrangements for the parties’ two children, X aged three years and Y aged 20 months.

2. The parties separated on 2 September 2013 when the Father moved out of the (omitted) unit in which the parties had been living.  It is common ground that three days later on 5 September 2013, the Father collected the children from daycare/pre-school early and kept them in his care, without the consent of the Mother. 

3. The children have been living with the Father since then.  They did not see their Mother from 5 September 2013 until 24 September 2013, a period of almost three weeks.  Since then, as a result of an agreement which the Father required before making the children available to the Mother, (pending the Court’s determination of interim arrangements) the children have spent time with the Mother on two afternoons each week (Tuesday and Thursday) from 3.30 p.m until 6.00 p.m. and Sundays from 8.00 a.m. until 3.30 p.m.  The children had seen the Mother on six occasions since they had been retained by the Father when the matter came before the Court. 

Orders Sought

1. The Father seeks interim orders set out in his solicitor's Case Outline providing for the children to live with him and spend time with the Mother in accordance with the present arrangements, on conditions set out at Order 2 of the Minute of Proposed Order included in his Case Outline.  That is, that the children’s time with the Mother be conditional upon:

   2.1 The Mother being restrained by injunction from physically   disciplining either child;

   2.2 The Mother being restrained by injunction from yelling/ screaming at either child or calling them derogatory names;

   2.3 The Mother undertaking to supervise both children at all times; and

   2.4 The Mother forthwith consulting a Psychiatrist or Psychologist in relation to her own mental health and comply with all recommendations for treatment and/or medication made by such Psychiatrist or Psychologist.

2. He also seeks an order providing for the children to remain at their present day care (in Y's case) and pre-school (in X's case) and other ancillary orders which are substantially agreed.[1]

   [1] Father’s Case Outline dated 8 October 2013

3. In her Amended Response, The Mother seeks interim orders providing for the children to live with her and to spend time with the Father each Tuesday and Thursday afternoon from 3.00 p.m. until 6.00 p.m. and each Saturday from 1.00 p.m. until 6.00 p.m. She also seeks orders providing for X to attend (omitted) pre-school and Y to attend (omitted) of (omitted) day care 4 days a week until 30 November 2013 and thereafter two days a week.  The Mother seeks orders for the children to spend time with the Father on special days, for telephone communication and other ancillary orders substantially agreed.  She also seeks an order for the children’s names to be placed on the Airport Watchlist.  The Mother also seeks an interim spouse maintenance order and an order relating to the children’s costs at day care/preschool but on the day of hearing, did not press her application for financial orders. 

4. At the end of the hearing, I made a watch-list order and altered the changeover location to a venue closer to the Mother's residence with the consent of both parties.  I also made an order for the parties and the children to be assessed by Mr P (Clinical Social Worker and Regulation 7 Family Consultant) in November 2013. 

Background facts

1. The parties met in (country omitted) in 2008, where they were both born.  At the time the Father was living and working in Australia. They conceived X when the Father was visiting the Mother in (country omitted) 2009.  X was born in (country omitted) in (omitted) 2010. The Mother migrated to Australia with X in March 2011 when the baby was eight months of age and they moved in with the Father to a home owned by him in (omitted) (in Sydney).

2. The parties married on (omitted) 2011 in Sydney.

3. Y was born on (omitted) 2012 in Sydney and the Mother breast fed him until October 2012, when the Mother deposes to the Father taking Y away for several days without her consent.

4. The evidence discloses that X has both physical and emotional health challenges. According to the (omitted) School notes, in approximately June 2012, when X attended the toddler programme at the school, staff observed abnormalities in her appearance including an arched/curved spine, inverted legs, an immature stance and manner of walking, a protruding stomach and rigid/jerky movements.[2]  There were also indications to staff that she was in pain when she slid down the slippery dip and was unable to sit before sliding. (omitted) Medical Centre notes record that on 4 August 2012, Dr C, the family’s General Practitioner, wrote to a Paediatrician Dr K in relation to "parental concerns with her limping/unsteadyness on her feet and tendency to prefer to run rather than walk."[3]  Dr K, by letter dated 5 September 2012 to Dr C, reported test results and stated "I reassured the family.  I think her problem is related to the exaggerated lumbar lordosis"   (without an explanation of that condition). It was suggested by the specialist that X be given Vitamin D supplements and see a physiotherapist about gait and mobility.

   [2] Exhibit 1, Documents from (omitted) School (dated various).

   [3] Exhibit 2, (omitted) Medical Centre notes, letter from Dr C to Dr K dated 4 August 2012

5. Neither party raises any concerns about Y’s development.

6. The Father is aged 44 years. He migrated to Australia from (country omitted) over 15 years ago and is an Australian citizen.  He is a (occupation omitted) at (employer omitted) in (omitted).  He has been (occupation omitted) in Australia for 15 years.  He is living with the two children in a two bedroom apartment a few minutes away from the (employer omitted).  He works five days a week, usually finishing his day between 3.00p.m and 4.00p.m (or later if meetings are held (omitted)).

7. The Mother is 28 years of age. She started an English course at (omitted) in early 2013 and a course in (omitted) at (omitted) in July 2013. It is a full time course and she will complete her studies in November 2013. She deposes to speaking and understanding basic English but to having some difficulty with reading and writing.  On arrival in Australia, the Mother was on a temporary spouse visa.  Since separation, when the Father immediately advised the Department of Immigration that the parties had separated, the Mother has applied for another visa and awaits the outcome of her application.  The Mother leaves home at about 7.45a.m to get to (school omitted) and returns at or about 3.30p.m./4.00p.m. The Mother is living in the former matrimonial home (a rental property at (omitted)) which is a three bedroom unit. The lease expires in November 2013 and the Mother plans to move closer to the children’s daycare/pre-school.  Presently, the Mother has no independent income, no entitlement to Centrelink and relies on a payment from the Father of $100 a week and a payment from the (omitted) Domestic Violence Service of $100 a week.[4] The Father has been paying the Mother's rent of $460 a week. The Mother appears to have a temporary Medicare card but it is not clear on the evidence what she is entitled to by way of health benefits.[5]  She has almost no assets.    

   [4] Mother’s Financial Statement filed 1 October 2013

   [5] Exhibit 3, Department of  Family and Community Services notes

8. With the exception of the Orders made by this Court on 9 October 2013, which I have already referred to, there are no parenting orders in place. The parties have been following an agreement they entered into on 24 September 2013. It is the Mother's case that she was so desperate to see her children that she felt she had no choice but to sign the Agreement. The Agreement provides, inter alia, that X and Y spend time with the Mother:

   1.1  From 3.30p.m. to 6.00p.m. on Tuesdays;

   1.2  From 3.30p.m. to 6.00p.m. on Thursdays;

   1.3  From 8.00a.m. to 3.30p.m. on Sundays; and

   1.4  At such other times as agreed between the parties, in writing.[6]

   [6] Mother’s affidavit sworn 1 October 2013, Annexure J (Agreement between Mr Imber & Ms Imber, 24 September 2013)

9. The Agreement also provides that the time the children spend with the Mother be conditional upon the Mother “being restrained by injunction from physically disciplining either child” and “from yelling / screaming at either child or calling them derogatory names”. The Agreement also provides that the Mother undertake to supervise the children at all times and that the children live with the Father.[7]  

   [7] Mother’s affidavit sworn 1 October 2013, Annexure J (Agreement between Mr Imber & Ms Imber, 24 September 2013)

Issues in dispute

1. The Court is asked to determine the children’s parenting arrangements while it awaits the outcome of an assessment by Mr P, which will include an attachment assessment of each child (being undertaken in November 2013). The matter will come back before me in December 2013 for review. 

Brief Care history

1. X was breastfed and in the Mother's sole care in (country omitted) for her first 8 months because the Father was living and working in Australia. 

2. Following the Mother and X’s arrival in Australia in March 2011, X remained in the Mother's care during the day while the Father worked five days a week as a (omitted).  The Mother disputes the Father's contention that he was actively involved in X’s care out of school hours and her primary carer during school holidays. The Mother says that the Father was home from work at 4.00p.m but went out again from about 6.00p.m until 10.00p.m or 11.00p.m most nights when the children remained in the care of the Mother.

3. The Mother says she took X to a play group twice a week for 3 hour sessions for almost eight months after she arrived in Australia.  She says she took her to the park to feed the ducks.  The Mother was lonely at this time but said she met some of the neighbours and people at the church. 

4. The family spent Sunday mornings at church and then the Mother says she alone looked after X for the rest of the day.  

5. The Mother says that the Father went away for two weeks before Y's birth, leaving her alone with X and dependent on the church and neighbours to help with food. He did not tell her where he had gone.[8]  

   [8] Mother’s affidavit sworn 1 October 2013, paragraph 26

6. On (omitted) 2012, Y was born and the Father says he took long service leave until the end of April 2012 and remained at home with the Mother and children.[9]  The Father in his affidavit observed that at this time:

   Ms Imber appeared to be physically exhausted and her physically disciplining of X increased. When I observed Ms Imber hit X or yell at her, I would say to Ms Imber words to the effect, “You shouldn’t treat her that way”.  However Ms Imber would respond with words to the effect, “That’s what was done to me.” Ms Imber would also say to X words to the effect, “You are a witch!” Ms Imber would say frequently to both children, although particularly X, that “You are a witch!” or “You are possessed!”[10]

   [9] Father’s affidavit sworn 6 September 2013, paragraph 24

   [10] Father’s affidavit sworn 6 September 2013, paragraph 24

7. Until July 2012, the children were at home with the Mother while the Father worked. 

8. In July 2012, when Y was five or six months of age, X attended one day a week at (omitted) School (at a programme for 0-2 year olds) for a few weeks.  The Father drove the Mother and the two children to the (omitted) School at 7.00 a.m and the Mother waited with the two children outside the School until 9.45a.m for the programme to start.  The Mother said X was not coping in the 0-2 year old programme. It was too tiring for her. The Mother had to wait with Y until midday for X and they then caught a train home - a total trip of over an hour. The Mother said that X was very active and difficult to keep in the pram during these trips.[11] 

   [11]Mother’s affidavit, sworn, 1 October 2013, paragraphs 32 and 33

9. From September 2012 until February 2013, the Mother remained at home and looked after the children while the Father went to work (employer omitted) (except that in October 2012, as a result of an incident which I will refer to later, the Father took the children away for two weeks while the Mother was still breastfeeding Y).[12]  The Mother commenced proceedings for recovery but discontinued (in circumstances to which I will later refer) when the children were returned and the parties reconciled.

   [12] Mother’s affidavit sworn 1 October 2013, paragraph 47

10. In February 2013 the Mother started an English course at (school omitted).  The Father took the children at 7.00a.m to day-care and returned them at 6.30p.m each day. The Mother says she had asked the Father to allow the children to be at home with her on a Friday and to allow her to collect the children after (school omitted) at 3.30pm, but he refused.

11. From February 2013 to July 2013, X attended long day care, five days a week at (omitted) of (omitted). Y started at the same time and remains in care five days a week. The Father (employer omitted) three minutes away and has been taking the children to and from day care and pre-school. 

1. In July 2013 the Mother commenced an (omitted) course at (school omitted). In July 2013 X commenced at (omitted) Pre-School five days a week. Y continued at day care five days a week. 

2. On 2 September 2013 the parties separated and on 5 September 2013 the Father removed the children from the Mother's care into his sole care.  The children saw their mother again on 24 September 2013 and since then they have spent time with her for 12.5 hours a week and remained living with the Father.

3. On the basis of this care chronology, I find that the Mother has been the children's primary carer until 5 September 2013, just after the date of separation.

Observations of parties since the Children moved to the Father

1. Each party gave short evidence about observations they had made of the children before and after changeovers since 24 September 2013.   Both were briefly cross examined. 

2. The Father said that before changeovers, the children are both calm and quiet in the car. At changeover, he says that X waves at him and asks when he is coming back and that X becomes quiet when he leaves.  The Father says that Y giggles and is calm at changeover. The Father said that the children did not particularly react when they saw their Mother but that X might be clingy and hang onto his leg.   When the Father collects them, he says that the children are playing. Y has run to him to be picked up.  The Father says that X will say “I’m hungry Daddy” and the Father says that he generally brings fruit with him for the children. The Father described very happy children who love to run around at his place.  He was concerned at one changeover that X was eating chips at a table and the Mother was with Y, some distance from the table.  He says that X always asks for food and she has said to him “Mummy hurt me” – though the context of this comment was not clear.  The Father says X is very, very active and is not distressed when he leaves her at pre-school and tells her the Mother is collecting her that afternoon. The Father says that X says “Ok, you pick me up later.” The Father says that X is not able to focus on phone calls with the Mother..“she fiddles with the buttons and runs away.”  Phone communication is therefore not successful. The Father says that the children love day care and pre-school and are very happy to be left.  The Father sent X to day care with Y in the second week of the October school holidays because she loves it so much.  

3. The Mother's observations at changeover are very different from those of the Father.  She says X yells and cries “I want to go with you”.  She says X has lost a lot of weight and is very skinny. She says that X’s hair which has cornrows, is dirty and matted and that her teeth have not been brushed.  She says X “is so stressed” and does not want to go with the Father at the end of the contact periods. The Department of Family and Community Services notes disclose the Mother's conversation with them on 25 September 2013 about the children’s first visit after three weeks on 24 September 2013.  The Mother told the Department worker that X tried to follow her home and that both children were crying.  The Mother told the caseworker that she was worried about X because she was losing weight.[13]  

   [13] Exhibit 1 (Department of Family and Community Services notes, Tab  1, Volume 2)

4. The Mother said that Y is obviously very excited to see her at changeover.  The Mother is concerned that Y is not speaking and had a “boil” on his head. When the Mother asked the Father about this, she claims he told her to mind her own business. 

5. The Mother says that the children's time with her is far too limited.  Her afternoon time involves her collecting the children at 3.30p.m, walking 15 minutes to get to the bus-stop with X in a pusher and Y in a baby carrier.  She takes them by bus for approximately 45 minutes and then a further 10 minutes’ walk at the other end to (omitted) park.  She has insufficient time to take them to her home.

6. On Sundays she has been collecting the children at 8.00a.m from (omitted) shopping centre and taking the children to a park because her bus does not arrive until 9.20a.m.

7. I accept and give some weight to the Mother's evidence about her observations of the children at changeover.  

Legal principles

1. The principles governing parenting cases are set out in Part VII of the Family Law Act 1975.  The Full Court in Goode & Goode [2006] FLC 93-286 says in interim proceedings as in final proceedings, the Court must follow the legislative pathway.

2. Section 60CA provides that I must regard the best interests of the children as the paramount consideration. To determine the children’s best interests I must consider the primary considerations set out in section 60CC(2) and the additional considerations set out in section 60CC(3).

3. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the children, I must consider all the factors before making a determination.

4. The primary considerations are firstly the benefit to the children of having a meaningful relationship with both of the children’s parents and secondly, the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. Section 60CC(2A) requires the Court in applying the primary considerations, to give greater weight to the consideration set out in section 60CC(2)(b).

PRIMARY CONSIDERATIONS

The benefit to the Children of having a meaningful relationship with both parents

1. While the Court awaits Mr P's assessment of the nature of each child's relationship with each parent, there is no evidence before the Court to suggest the children are not close to each party.

2. The children have been in the Mother's primary care since birth until 5 September 2013. The children then did not see their Mother for almost three weeks. I have concerns about the impact that this significant and sudden change in care arrangements may have had both on the children's emotional development and on the security of the relationship between the children and the Mother.  This is a factor to which I give substantial weight.

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

1. This factor is significant in this case

2. “Abuse” is defined (abridged) in section 4 of the Family Law Act1975 as:

   (a)    an assault...of the child; or

   …

   (c)     causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)    serious neglect of the child.”

3. Family violence is defined at section 4AB(1) of the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family….or causes the family member to be fearful.”

4. Section 4AB(2) provides a non-exhaustive list of examples of behaviour that may constitute family violence, which include:

   (a)    an assault; or…

   (d)    repeated derogatory taunts; or…

   (g)    unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)     preventing the family member from making or keeping connections with his or her family, friends or culture…

5. Section 4AB(3) says that “For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.”

6. Section 4AB(4) outlines examples of situations that may constitute a child being exposed to family violence.

7. Each party alleges that the children have been exposed to abuse and family violence.  Each party has filed a Notice of Child Abuse and Family Violence (a Form 4). The Father filed a Form 4 in these proceedings on 9 September 2013. The Mother filed a Form 4 in October 2012 when she commenced proceedings for recovery and again on 1 October 2013 in the current proceedings.

8. In his affidavit evidence, the Father alleges in summary that the Mother has physically abused X, verbally abused both children, withheld food from X, threatened to kill herself and the children, threatened to give X up for adoption and failed to supervise X. He says the Mother is unable to manage X's challenging behaviour and becomes frustrated and aggressive towards her.  It is his contention that the Mother suffers from a mental illness and has refused treatment.  It is his case that the children are not safe in the Mother's care for more than limited daytime periods and that is the reason he took them away from her.[14]

   [14] Father’s Form 4, filed 9 September 2013; Father’s affidavit sworn 6 September 2013

9. In her affidavit evidence in summary, the Mother makes a number of serious allegations about the Father’s conduct towards both her and the children. 

10. The Mother alleges that the Father on their wedding night, told her that he only married her to have his children. The Mother alleges that the Father said that a previous wife couldn't have children so he sent her back to (country omitted).  The Mother deposes to the Father denigrating her and verbally abusing her from then on.[15]  The Father gave her a booklet to tell her how to improve herself and be a good wife.[16]  The Mother says the Father would threaten to return her to (country omitted) if she did not obey him.  She claims that the Father was controlling and coercive. More than once, the Mother alleges that the Father threw a remote control device at her.  The Mother has disclosed to authorities that the Father abuses her, particularly by way of financial control, not giving her enough money and by threatening to have her deported to (country omitted).

    [15] Mother’s affidavit sworn 1 October 2013 at paragraph 15

    [16] Mother’s affidavit sworn 1 October 2013 at paragraph 31

11. The Mother claims that the Father also insisted that they leave the children asleep unattended at night on a number of occasions so he could take her to the (omitted) Club, where he told the Mother to drink alcohol so she would improve her performance in bed.[17]

    [17] Mother’s affidavit sworn 1 October 2013

12. She claims that the Father was obsessed with both her and X remaining thin and severely limited X's food intake.

13. The Mother also claims that the Father took the children away without telling her where they were and that the Father left their home for days at a time without telling her where he was.

14. If proved, I am satisfied that each party's allegations against the other may constitute abuse, neglect and family violence. Findings under this factor are therefore significant to the outcome of this case.   

15. I have carefully examined the large bundles of material tendered in evidence by each party from third parties to identify and evaluate the independent evidence which supports either party's version of what has occurred. 

The Father's allegations against the Mother

The Mother’s abuse of X

1. Medical notes confirm that on 19 February 2012, X was referred to (omitted) Hospital to check for a possible dislocation of X's elbow. Her elbow was manipulated at the Hospital and she was given analgesics according to hospital records.  The notes say “claims that the child was pulled by the mom”.[18]  The Father says that after the family had been to church, he observed the Mother pull X off the pram and onto the pavement causing the injury to her elbow.  The Mother has a different version of events: that after church, she collected X from the church crèche. When she arrived X held out her arm to the Mother, holding her elbow and said words to the effect of “hurt mummy.” Both parties saw the Doctor with X. The Mother reported to the Doctor that “X’s arm was pulled at crèche.”[19] They were referred to the Hospital where the Mother says only the Father took X in to see the Doctor.  On the basis of the evidence available, I am unable to make a finding as to what occurred on this occasion.   

   [18] Father’s affidavit sworn 6 September 2013, at Annexure A

   [19] Mother’s affidavit sworn 1 October 2013 at paragraph 30

2. (omitted) School notes disclose that when the Mother took X to the toddler group, the Mother told staff that X screams all the time. The Director observed the Mother screaming at X. On 16 August 2012, according to the notes, X tripped and cried and the Mother said “you deserve it; a naughty girl, I wish you cut your neck, I would put chilli sauce on you and cut, cut your neck.[20]  The Director explained the importance of not screaming at X to the Mother. The notes include a reference to the Mother reporting that the neighbours heard her screaming and yelling.[21]

   [20] Exhibit 1

   [21] Exhibit 1

3. On 4 September 2012, there was an incident in front of staff and other parents at the (omitted) School. The School notes state that the Mother, after saying to X “when are you going to sit still”, then: “hit her [X] on her R [sic] shoulder with her hand. She then hit her again on the back of her neck, head,  she said “always moving, never listen. She hit her on the back “never listen, never listen” She then pinched her cheek & squeezed it really hard. “Naughty girl” and pushed her into the storeroom door and told her to “Face the door”. X was sobbing at this time.”[22]

   [22] Exhibit 1

4. A couple of weeks later the Mother withdrew X from the class.  The Mother refers to being spoken to by the Director of the School about the incident on 4 September 2013. The Mother said she was tired, had not eaten and that X was being difficult.  The Father says the Mother withdrew X from the (omitted) School 0-2 year olds programme shortly after that, implying the Mother withdrew X as a result of having been spoken to by staff. The Mother’s version as to why X stopped attending the program is that X was not coping with the programme, that the Father gave his permission for her to withdraw and that she was relieved.  The Mother told the Director it was too hard to attend as they lived far away and she was going back to (school omitted) to finish her degree.  On 5 September 2012, staff spoke to the Father about the incident on 4 September 2013. They said they wanted to support the family and help educate the Mother about the school policy on corporal punishment which is forbidden.    

5. As noted, X started (omitted) pre-school in June/July 2013. (omitted) School notes dated 5 September 2013, say that “X were [sic] hungry most morning.  She cannot concentrate on anything apart from food.  Usually she will be hungry every 1.5 hours.”[23] While X was apparently in the Mother’s sole care on 5 September, I find it noteworthy that the Father says he always prepared breakfast for X and got X ready for pre-school. If this were so, the school’s comments may give some weight to the Mother’s assertion that the Father did not allow X enough food. 

   [23] Exhibit 1

6. There are medical records produced by the parties' General Practitioner Dr C. The records of 1 July 2013 state, “I have heard a recording which I recognise as Ms Imber withholding food from X consistent with Mr Imber’s reports”.   In the absence of evidence as to where the recording has come from, how that recording was made, or the context of the recording, I give it no weight.[24]

   [24] Exhibit 2

7. On 10 October 2012, the General Practitioner recorded that he remained “gravely concerned about the Children’s well-being in the event that they are back with their mother who appears to be severely depressed based on history provided (by the Father, not the Mother) and who is in denial about the need to access help and has threatened over some occasions take the children away and end her and their life." It would seem that the Doctor has simply recorded what the Father has told him and that the Doctor has not himself assessed the Mother’s state of mental health. 

8. A letter from X's General Practitioner to "(omitted)" child psychologists (dated 22 August 2013), referred X “for strategies to treat her behavioural issues -  with evidence of features consistent with ADHD which is father's concern.  Please take further history from father about the environmental triggers to amplifying her behaviours.” The letter also referred to speech concerns in relation to X. The General Practitioner also outlines some of past concerns at pre-school regarding X's behaviour.[25] 

   [25] Exhibit 2 ((omitted) Medical Centre, (omitted) referral dated 22 August 2013)

9. On 2 October 2013, Mr O, registered psychologist from (omitted) wrote to X's General Practitioner.  X, by then, had had two sessions of therapy. The psychologist states in his letter to X's General Practitioner, that X is progressing well with the support of her Father.  I note that without explanation, there is no mention of any communication between Mr O and the Mother and I note that by the date of this letter, the children were in the Father's full time care.  Mr O states that X presented with behavioural problems and her behaviours reflected aspects of “disorganised attachment”. He explains that "this occurs when a child's emotional closeness is ignored by the primary caregiver. The primary caregiver may also be a source of abuse and trauma for the child."[26]  It appears to be implied that the Mother may be responsible for this presentation in X but as I have said, Mr O has not met the Mother nor observed X in her presence.  He says that he has discussed strategies for managing X's behaviour with the Father.  He says that X has responded well to these strategies and is calmer and able to engage in activities. Mr O also says that X " is making good eye contact and is not displaying erratic moods as she was doing earlier."  Mr O says in this letter that he will continue to see X.[27]

   [26] Exhibit 5 (Letter from Mr O ((omitted)) to Dr C dated 2 October 2013)

   [27] Exhibit 5

10. Ms Cantrall, the Mother’s solicitor, submits that the Court should give little if any weight to the report of Mr O about the security of X's attachment to the Mother in circumstances in which:  he has not observed X with the Mother; he has taken the narrative from the Father only; his qualifications and experience in relation to attachment assessments is not known; and the Mother denies signing her consent to X being seen by him. 

11. I agree with this submission. I make no findings based on this report. The attachment assessment will be undertaken by Mr P.

Mother suffers from a mental illness   

1. Apart from a medical record about the Mother being depressed when seen by her General Practitioner, Dr C on 20 October 2012 when it was noted that her father had been murdered earlier that year and she was referred to local women's health centre for counselling, there is nothing in the notes to suggest the Mother suffers from a mental illness.  A letter dated 10 September 2013 in the notes from Dr C to Dr A, psychiatrist, refers to a 52-page letter to him from Watts McCray, the Father's lawyers. [28] The evidence does not disclose whether or not the Mother has consulted Dr A. 

   [28] Exhibit 2

2. On 10 October 2012, though not specifically recorded, it appears that the Father took X to Dr C.  The doctor’s notes read:  "noting maternal history of probably mental illness currently have grave concerns for them going back to mother's care unless she was diagnosed and fully treated with respect to likely depression."  [29]

   [29] Exhibit 2

3. In her Initiating documents filed in October 2012, the Mother deposed to an argument with the Father on 8 October 2012, when the Father wanted to go to the (omitted) Club with her and leave the children home alone. The Mother says she protested.[30]  The Mother says this was not the first time he had demanded she leave the children and on this evening, out of frustration, she said “I just want to end my life.” This resulted in the Father calling the police and the Mother being taken to (omitted) Hospital for a mental health assessment. She was assessed and released without admission. When the Mother returned home, the Father and the children had left the home. The Mother took immediate steps to file an Application for Recovery but her Legal Aid application was not approved until 17 October 2012, over a week later.  Her Initiating documents were filed two days later.  The Mother says that when she was at the hospital and told that she had no mental health issues, the Father took the children from the home without her knowledge or consent.

   [30] Mother’s affidavit sworn 18 October 2012

1. The Mother says that as soon as the Father was served with an Application for an Apprehended Violence Order (‘AVO’) and an Application for a Recovery order as a result of his actions, he persuaded the Mother to withdraw the proceedings because he would lose his job if he had a police record.  The Mother says that her family advised her against going to court. The Mother claims that the Father insisted that she copy a letter written by him into her handwriting withdrawing her Application for an AVO and withdrawing her Application for parenting orders. The Father drove her around to deliver the letters to the relevant offices.[31]

   [31] Father’s affidavit sworn 6 September 2013, Annexure C

2. The Father’s version of events of 8 October 2013 differs from that of the Mother.  On 8 October 2012 at approximately 7.00p.m, the Father says he observed the Mother becoming increasingly upset and frustrated with X’s behaviour.  He says that the Mother started to scream, yell and cry, repeating ‘I’m going to kill myself.  I'm going to kill the kids." ... I can't cope with X.  I'm going to give her up for adoption.".. I want to kill myself. And I want my children to be with me wherever I am so I will kill them too."  The Mother then locked herself in her room.  The Father says he put the children in X's room and started phoning around for help. He called 000 and police and ambulance came. The Mother was taken to (omitted) Hospital and the Father took the children to a serviced apartment in (omitted) where he stayed for a week.  

3. The Hospital notes state that the Mother told the Hospital staff that the Father subjected her to sexual abuse, financial control, domestic violence and threats of deportation. The Father denies all of this.  

4. (omitted) Police commenced AVO proceedings on behalf of the Mother.  In the complaint, the Mother tells police she did say to the Father that she was going to kill herself as acknowledged in her affidavit.[32]  She told police that the abuse she reported to the Hospital involved the Father depriving her of money and threatening to have her deported to (country omitted) if she did not comply with his requests. 

   [32] Father’s affidavit sworn 6 September 2013, Annexure B;  Mother’s affidavit sworn 1 October 2013

5. As already noted, the Mother deposes to limited skills in reading and writing English, although she can understand and speak some English. This was evident when the Mother was giving evidence. The Mother does not have perfect English.  I find it noteworthy that the letters that the Father says were written by the Mother contain no spelling or grammatical mistakes. The Father says that the Mother wrote the letters herself. He does not suggest that he drafted them for her. On balance, I find it more likely that the Father prepared the letters and had the Mother carefully copy them in her handwriting as she deposes. 

The Mother's allegations against the Father

Father is controlling and coercive and abuses the Mother

1. In her affidavit sworn in October 2012, when the earlier proceedings for Recovery were issued, the Mother deposed to suffering domestic violence during the relationship.  In addition, she says that the Father used to make her leave the children alone unsupervised at night so they could go to the (omitted) Club at (omitted), always against her will.[33]  The Mother said to the Father (October 2012 affidavit): “Y and X are too young to be left by themselves what if there was a fire?”  The Father responded, allegedly saying: “you need to follow my instruction… if you don’t I will cancel your visa and send you to (country omitted). I will marry an Australian woman and will give them X and Y to look after.”[34]  The Mother would do as she was told.[35] The Mother says that the Father gave her a booklet with a list of instructions as to how to be a good wife and what she should do to make him happy.[36] The document includes sections on “treating your Husband with respect” and “being supportive” and “keeping him happy in bed.”[37]

   [33] Affidavit of the Mother sworn 18 October 2012 at paragraph 22

   [34] Affidavit of the Mother sworn 18 October 2012 at paragraph 22         

   [35] Affidavit of the Mother sworn 18 October 2012 at paragraph 23         

   [36] Affidavit of the Mother sworn 18 October 2012 at Annexure B

   [37] Affidavit of the Mother sworn 18 October 2012 at Annexure B

2. The Father deposes to suffering from anxiety and depression as a result of the Mother's conduct and threats against him. He consults a psychologist Mr G whose notes are in evidence.[38]  When the Father was taken to hospital, the psychologist believes he suffered a panic attack. The Father takes medication which he says has helped.  He first consulted Mr G in November 2012. The report states that the Father presented as stressed and gravely concerned regarding his Wife's functioning and her care of the children. He reports the Mother spending excessively. The notes essentially repeat what the Father alleges in his affidavit material. In essence, that the Mother suffers a mental illness and as a result, her parenting capacity is compromised.   He told his psychologist that the Mother had talked about "evil spirits" and said X had been affected by witchcraft and needs an "iron hand" to manage her behaviour. He reported spending nights in motels from time to time to get some sleep, leaving the children with the Mother.[39]

   [38] Exhibit 6 (Letter from Mr G dated 1 October 2013)

   [39] Exhibit 6

3. In Mr G's opinion, the Father's consistency in his reports over time support the view that the Mother has a mental disturbance and has rejected efforts to obtain help for her. Mr G states: "his concerns for the children appear grounded in reality." [40]  He believes the Mother cannot cope with the stress of parenting her young children.  Mr G says he supports the Father's concerns regarding the Mother's ability to cope with overnight contact at this point of time.  He suggests the Mother would benefit from psychotropic medication.   Given Mr G comes to this view on the Father’s reporting alone without meeting the Mother or having access to any medical assessment of her,  I find this evidence largely unhelpful.

   [40] Exhibit 6

Father's neglect of the children

1. The Mother told the Department of Family and Community Services  that the Father used to portion control food as he was concerned X or the Mother would be obese.[41] The Mother says the Father slapped X on the cheek leaving a mark when X was well under 2 years of age because she was eating too much.[42]  

   [41] Exhibit 3 (Vol 2 page 1)

   [42] Affidavit of the Mother sworn 1 October 2013 at paragraph 40

2. The Mother says that the Father limits the food X can eat.[43]  She says the Father told her to feed X the following for the day: 

   [43] Mother’s Form 4, filed 1 October 2013

   a)  Breakfast:  Three small Rice crackers and some apple

   b)  Lunch:  cucumber sticks and one slice of bread

   c)   Dinner: rice and 50 cent piece serving of carrots.[44]

   [44] Mother’s affidavit sworn 18 October 2012, paragraph 43

3. The Mother says that the Father did not permit X to eat meat or dairy. The Mother says that she was advised by the (omitted) Early Childhood Centre that X was underweight so she would hide food in the house and give X extra food when the Father was not there. The Mother says that X was hungry. The Mother further deposed to concerns about X’s physical development as a result.  

Conclusion on risk issues

1. The evidence raises concerns about each party's capacity to parent which will require further investigation and assessment.  As already noted, an Independent Children’s Lawyer has been appointed and an assessment has been ordered.

2. The Mother's evidence that the Father required her to go out with him to drink leaving the children alone at night unattended when Y was only four months of age and the fact that she complied with this demand, is particularly troubling in relation to both parties. 

3. While there is evidence of the Mother being seen by third parties screaming at X, smacking X and using harsh and inappropriate language in frustration about her behaviour, I do not on the evidence before me, conclude that the Mother is an abusive parent.  There is independent evidence that X is an agitated child, screams a lot, struggles to focus and is highly active. A Doctor has diagnosed her with Attention Deficit Hyperactivity Disorder. The Father admits that X is a difficult child to manage and her behaviour is challenging, requiring a parent's constant vigilance and patience.  It seems likely that the Mother has at times been unable to control her frustration/anger at X's behaviours and managed X inappropriately. 

4. On 14 June 2013, the Father spoke to caseworkers at the Department about the impact of the Mother's behaviour on his own mental health.  He wanted the Mother to get help. The Case Worker spoke to LifeCare on 18 June 2013, who confirmed that the Father spoke to them over a 4-6 week period.  The Father told them that the Mother was a good mother but he was worried about her behaviours.[45]

   [45] Exhibit 3 (Department of Family & Community Services documents)

5. On 12 July 2013, the parties were assessed by Departmental case workers.  They record that when the Mother presented at hospital in October 2012, she had appropriate mood, behaviour, cognitive functioning and no need for mental health services. Their records disclose that the parties had one counselling session together at CatholicCare in June 2013 but the counsellors understood from the Father that the Mother did not want to come again. The counsellor said that the matters of harm or the safety of the children were not brought up by the Father.[46]  The Departmental assessment notes inconsistencies in each party's story, but comes to no view. There is no suggestion of removing the children from either party.[47]

   [46] Exhibit 3 (Department of Family & Community Services documents) , Volume 1, 18 June 2010 file note)

   [47] Exhibit 3 (Department of Family & Community Services documents)

6. The Departmental notes disclose that on 3 September 2013, the Father was told by an officer of LifeCare that they had no concerns about the care of the children while in the Mother's care after having met the Mother three times. 

7. The Mother’s solicitor submits that the email from the Case Worker dated 19 August 2013 to the counsellor is noteworthy. It says “the concern is that Mr Imber [the Father] is speaking to counsellors to build his credibility and isolating Ms Imber [the Mother] from being able to do so.  Mr Imber had his own GP diagnose Ms Imber with bipolar without even meeting her, by a description of her behaviours.”[48] …The Father has told significant people like child care staff for the Children that the Mother has mental health issues.Ms C emphasises that a mental health team has said that the Mother is not mentally unwell.  The Department have not taken steps to remove the children from the Mother.  The Father does not suggest that the Mother requires supervision when the children are in her care and on each occasion the parties have reconciled after short periods of separation, the children have returned to the Mother's care. 

   [48] Exhibit 3(Volume 2 Tab 7, email dated 19 August 2013 from Child Protection Caseworker to (omitted) LifeCare Relationship Services)

8. The evidence leaves open the possibility that the Father has undermined the Mother's role as the primary carer to the children by telling others she is mentally ill and unsafe to care for the children and by isolating her.  His reasons for the family moving from an established home he owned in (omitted) to (omitted) are difficult to follow.  The Mother says she was upset about the move because she had made friends at their church and amongst some of their local neighbours.  The Father says that his reasons for the move were financial; that the Mother recklessly spent money and that he was unable to pay the mortgage instalments. However, to some extent contradicting his evidence, Departmental records show that when referred for advice on budgeting, the Father abruptly refused the advice on the basis that he had a good job and plenty of money.[49] It does not appear that issues he had with the Mother's spending were raised at that meeting.  I therefore find it a possibility on the evidence that one of the reasons for the Father's move from (omitted) was to move the Mother away from the neighbours and friends she was making as a form of control over her.

   [49] Exhibit 3 (Volume 2, Department notes at 84)

9. Dr C and Mr O rely on the Father's narrative alone in reaching their conclusions.  The Mother, when seen by (omitted) Hospital mental health team, presented as mentally healthy. Dr C raises no concerns about the Mother in his notes about her.  Neither LifeCare nor the Department have formed the view that the children are at risk in the Mother’s care. 

10. The Department’s notes record their concerns as to how the Father treats the Mother.  The Father does not deny he gave the Mother the booklet about how to please him as a Husband.  Also as noted, I find it likely that in 2012 the Father required the Mother to write the letters about discontinuing proceedings for an Apprehended Domestic Violence Order and proceedings for a recovery order.  In relation to his capacity as a parent, I have concerns about his insight into the children's needs when he took them away for at least a week when Y was a few months old and still being breastfed.  I find he showed a poor understanding of the children's developmental and emotional needs when he kept them away from their Mother for almost three weeks after separation and then made limited arrangements for their time with her, given their young ages and her role as their primary carer.

RELEVANT ADDITIONAL CONSIDERATIONS

1. I am unable to make findings about most of these factors at this stage.

The nature of the relationship of the Children with each of the Children’s parents and other persons (including any grandparent or other relative of the child)

1. The Court awaits the assessment of Mr P. 

The likely effect of any changes in the Children’s circumstances, including the likely effect on the Children of any separation from either of his or her parents with whom the he or she has been living

1. The children are very young and were in the Mother’s primary care until 5 September 2013.  I find it likely that the children will be finding it confusing and distressing to be away from her so much of the time.  As already noted, I accept the Mother’s evidence as to their distress at changeovers when they have to leave her.  It may be, and the Court awaits the assessment, that the children are being harmed by being kept away from the Mother. 

The practical difficulty and expense of the Children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

1. There are practical difficulties given the distance between the Mother’s present home and the children’s day care and pre-school and the fact that the Mother relies on public transport to move around with the children, but given the short period before the Mother plans to move closer, I give this factor minimal weight.

The capacity of each of the Children’s parents to provide for the needs of the Children, including emotional and intellectual needs

1. In relation to the Father, I have already noted the Mother's allegation that on a number of occasions the Father made the decision to leave the children in the home asleep, unattended at night, while the parties went to a club to drink. If this has occurred, it raises extremely serious concerns about the Father's parenting ability.  The Mother told a Departmental case worker on 18 September 2013 that she was worried about Y, because he wakes a lot in the night and she needs to tend to him to get him back to sleep. It may be that he has awoken and received no response when crying for attention when no one has been there to respond to him.  This is potentially very damaging. 

2. When the Mother  saw the children for the first time in three weeks on 24 September 2013, she said X had lost weight, her hair was matted and dirty.  This is concerning in light of her allegations about the Father's approach to X's diet.  The Mother is worried about X still not walking properly and fears the Father has made no arrangements for her to have physiotherapy.  The Mother says that she has reported these concerns regarding the children to her DOCS caseworker.  However, neither (omitted) School nor the daycare centre raise any concerns about the Father or his management of the children. 

3. In relation to the Mother as already noted, the Father says he observed the Mother's struggle to manage X's challenging behaviour.  He alleges that the Mother punished X by depriving her of lunch or dinner and states in his affidavit that “there were more than 10 occasions where Ms Imber refused to give X any dinner.”[50]  He says the Mother put X in the garage for 30-40 minutes.  While denied by the Mother, this is a potentially serious matter. On 26 September 2012, the Father says the Mother rang him at work to say X had left home and been found in the park at (omitted), a 2-3 minute walk from their home.  The Mother acknowledges that X got out of the home and was found in a park, though gives a different version of how the incident occurred.  On 1 February 2013, the Mother told the Father that she accidently locked Y inside the house and they had to get spare keys from the agent.  In late February 2013, the Father says that the Mother reported to him by phone that X left the house by herself and was found on the other side of a busy road by a resident who didn't want to give the child back to the Mother. The Mother said to the Father on his immediate return home "she is spoilt and won't obey me” and “she must have opened the garage by herself."[51] Again, while this is denied by the Mother, it raises potential concerns about whether the Mother is sufficiently vigilant.  There does appear to be a timing issue in relation to the Father's allegations here.  In late February 2013, he says the children were in full time care and he was always present when they were at home.

   [50] Father’s affidavit sworn 6 September 2013, paragraph 36

   [51] Father’s affidavit sworn 6 September 2013, paragraph 54

4. In May 2013, the Father says he awoke to a strong smell of smoke in the house. He blamed the Mother for leaving something on the stove.[52] This is denied by the Mother.

   [52] Father’s affidavit sworn 6 September 2013, paragraph 60

5. While each party makes allegations about the other's approach to parenting, with the exception of the issues about food that I have noted, neither denies the other's capacity to dress and bath the children, cook for them, buy their clothing and look after their physical needs. While the Mother deposes to the Father's frequent absences from the home at night and sometimes for days at a time, she does acknowledge his involvement with the children, which suggests she has some trust in his capacity to care for them. 

6. I find it likely there are deficiencies in each party's approach to parenting and expect the seriousness of these deficiencies will be identified in the assessment process. 

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the Children and of either of the Children’s parents, and any other characteristics of the child that the court thinks are relevant.

1. Each party is (country omitted).  While the Mother complains that the Father used to prohibit her from cooking traditional food, this is not a factor that affects this decision. 

The attitude to the Children, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

1. The Mother says the Father used to come home from work, ate dinner, went out again and came home at 10.00p.m or 11.00p.m which she found difficult.  The Mother says that she fed the children, bathed them and put them to bed without the Father’s help.  At other times, the Father went away for a few days for respite, leaving the Mother alone with the children and not telling her where he had gone. 

1. The Mother says that the Father refused to take her to meet the staff at day care when she very much wanted to meet those caring for her children.  

2. The Mother says when the Father insisted she take X to the “2 year old group” at (omitted) School, he failed to consider Y, or how hard it was for her being dropped early to wait with two small children until the group started and then travel home by bus. She says that X was hard to keep in the pram, she would carry Y on her front and they would be tired and hungry after an hour's travel home. The arrangements presently in place also require the Mother to do substantial travel with the children on foot or by public transport.  I find these matters reflect poorly on the Father's attitude.

3. On the other hand, the Father has a responsible job as a (omitted) and has been the sole financial provider.  While the Mother contends he has deprived her of money and taken a controlling approach to money, he has nevertheless been the sole provider and kept a roof over the family's head as well as meeting their basic needs.  The Father has also arranged for the parties to attend the ‘Triple P’ parenting skills programme and sought support for the Mother from the church and the Migrant Resource Centre.  He has sought medical help, to his credit, for his anxiety and depression.  These factors, some of which are yet to be established, if true, reflect well on the Father. 

PARENTAL RESPONSIBILITY

1. Neither party seeks order for parental responsibility in their interim applications. Given the high level of distrust between these parties and the very short period since separation, it would in my view be premature and against the children's best interests to make a decision on this issue at this stage.

Conclusion

1. This is a complex matter. The children are very young, one only 20 months.  I am being asked to make a decision in the absence of any assessment of the nature of the relationships between each child and each parent. There is limited independent evidence before the Court and few facts agreed between the parties.

2. The Father asks the Court to find that the Mother lacks the capacity to care for the children and that the children are at risk in her care.  He seeks that the current arrangements continue which provide for limited day time between the children and the Mother, at least while Mr P's assessment is finalised. 

3. On the other hand, the Mother asks the Court to find that the Father has been controlling, coercive and threatening in his conduct towards her and has endeavoured to manipulate an outcome which would see the children in his care by reporting to various authorities that she is mentally ill and is abusive towards the children.  It is the Mother’s case that she has been isolated, without income of her own and fearful of deportation to (country omitted) away from her children. She says she has had little choice but to largely comply with the Father’s demands.

4. As noted in the section on the care history which is substantially agreed, I find it likely that the children's primary attachment is to the Mother and that the children are therefore likely to have suffered significantly from her total absence from their lives for a period of three weeks immediately post-separation and her limited time with them since, including no time at all overnight.  The subject children are just three years and 20 months.  Until 5 September 2013, the baby, Y, had rarely been away from his Mother's care. X had spent her first nine months solely in the Mother's care and since then, spent only short and infrequent periods away from the Mother overnight. 

5. I am satisfied that the Mother has, in the past, behaved inappropriately towards X on occasions and as I have noted, there is an issue as to the quality of the Mother’s parenting. However, there are no third party reports of the Mother presenting as mentally unwell.  The question at this interim stage is whether the children are at risk in the Mother’s care if they were to be returned to her full time. The Mother is rightly criticised for the inconsistencies in her position. On the one hand, she describes the Father as an abusive and controlling man and on the other, she has notified authorities that she has lied about his conduct and wants to retract what she has said.  But all these matters must be put in context.

6. The Mother is likely to have suffered considerable stress given the changes she has recently faced.  She has been in Australia for just over two years.  She arrived as a migrant with an eight month old baby, able to understand and speak basic English but with limited ability to read and write. She has cared for two babies without the support of her extended family.  The Mother’s father, to whom the Father says she was very close, was murdered at the time of Y's birth and she was unable to return to (country omitted) for his funeral. X's behaviour has been challenging and at times, extremely challenging on the Father's own evidence. X also has physical challenges as identified by (omitted) School. The parties have had a strained relationship and a number of brief separations. The Mother has been dependent on the Father for financial support and for the visa that has allowed her to stay in Australia.  She has felt she had to comply with his wishes, at times strongly contrary to her own. The Mother has been at (school omitted) full time.  After the Father removed the children from her care on 5 September 2013, the children did not see her for three weeks.  After that, she has had to get herself to the children's day care and pre-school. This is some distance from her home in (omitted) by public transport. The Mother has spent much of her limited time with the children on weekday afternoons walking and riding on a bus with them without time to travel home and back to the changeover point on time.  What the Mother has been expected to do would test the resilience of a Mother born in Australia with none of these additional obstacles, let alone this Mother who has been here such a short time and for whom English is not her first language. 

7. I have decided that any risk to the children returning to the Mother's full time care is minimal for these reasons:  (1) The Departmental case workers, who have been involved with the family during this year, are not concerned about the children’s safety in the Mother’s care, yet they are aware of all the allegations against her; in addition, they have a case file open and are providing ongoing support to the Mother; (2) LifeCare has met the Mother several times and has no concerns; (3) Until 5 September 2013, the Father was leaving the children unsupervised in the Mother’s care outside day care/pre-school hours; (4) On his own evidence, the Father has left the children with the Mother while he has sought respite for days at a time away from the home; (5) The Father has not sought that the children be supervised in the Mother's care since separation; (6) The Mother now has the support of a domestic violence service; two workers were at Court to support her at the interim hearing;  (7) The Mother has from time to time, collected the children from pre-school/day-care and there have been no further adverse reports of her conduct since 2012;  (8) the children will continue to attend pre-school and day-care and the staff are mandatory reporters; (9) The Mother goes to church regularly with the children and there have been no adverse reports from any member of the church; (10) The Director of (school omitted) where the Mother spends most of her weekday time, provides a strong positive reference about the Mother;  (11) As a further protection, the children are about to be assessed and these parties are under the spotlight of this Court.  

8. There are practical difficulties in this case. The Mother has been dependent on the Father for her financial support and continues to depend on him.  Presently, the Father pays her rent of $460 a week and she receives approximately $100 a week from the Domestic Violence Support Service who were with her at Court.  The Mother has no certainty yet as to her Centrelink entitlements, although her Solicitor tells the Court that she has applied for a benefit and pending a decision, there would be other resources made available to the Mother if needed, including the ongoing support of the Domestic Violence Support Service.  The Mother has applied for a protection visa but does not know the outcome of her application.  The Father would be liable for child support if the Mother lodged an application.  I am satisfied the Mother is likely to be eligible for some form of emergency support given her circumstances, pending the outcome of her various applications.

9. Ms Bedford, legal representative for the Father, submits that it would therefore be disruptive for the children to be moved from the Father's care when the assessment will shortly be prepared and therefore the Court should take a cautious view at this stage.  I find merit in the Father's solicitor’s submission that if the Court moved the children back to the Mother now and then after the assessment had to move them back to the Father, it would be particularly unsettling and distressing for these young children.  It would be. But these children are not eight and 10 years of age when time away from a primary carer might be sustainable, they are three years old and 20 months old and prolonged time away from their primary carer has the potential to be damaging to them.  This would apply in particular to Y and even if Mr P finds there is insecurity in either child's relationship to the Mother, it does not follow automatically that he will recommend that they be taken from her care.  

10. I am satisfied that it is developmentally supportive and therefore it is in the best interests of these children, given their ages and their care history, to live with their Mother as their primary attachment figure as long as they are safe from harm.  As I have said, the question is whether the children will be safe and appropriately cared for in the Mother’s care while the Court awaits the outcome of the assessment.    I am satisfied on the basis of the evidence before me, that they will be safe and that they should be returned to the Mother's care as soon as that can be arranged. 

11. The children will remain at pre-school/day care until the Mother completes (course omitted) in November.  X will remain in pre-school after that until the end of the year.  Y will spend two days a week at day care.  The children will spend three periods a week with the Father, two afternoons during the week, and Saturday afternoons. 

12. Having regard to all these matters, I am satisfied that the Orders set out at the beginning of these Reasons are in the best interests of X and Y at this interim stage.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of Judge Sexton

Date: 18 October 2013