Ishmal and Karaja

[2019] FamCA 571

FAMILY COURT OF AUSTRALIA

ISHMAL & KARAJA [2019] FamCA 571

FAMILY LAW – PARENTING – Application for parenting orders – where the Applicant Father has not seen the child since the child was six months old – where the Father seeks equally shared parental responsibility and graduated time with the child – where the Mother seeks sole parental responsibility and that the child spends no time with the Father – where the child does not know about the existence of his Father – where there are allegations of family violence – where family violence is not established on the evidence – where there are long term benefits to the child knowing their Father – where orders are made for a staged reintroduction of the child to the Father under the supervision of a therapeutic practitioner – where the matter is to be brought back to this court for a final hearing.  

Family Law Act 1975 (Cth) ss 60CC, 65DAC, 68B

In the marriage of N & S (1995) 19 Fam LR 837

APPLICANT: Mr Ishmal

RESPONDENT: Ms Karaja

INDEPENDENT CHILDREN’S LAWYER: Ms Fernandez

FILE NUMBER: SYC 3586 of 2015

DATE DELIVERED: 1 August 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 29 July – 31 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cook

SOLICITOR FOR THE APPLICANT: David H Cohen & Co

COUNSEL FOR THE RESPONDENT: Ms Conte-Mills

SOLICITOR FOR THE RESPONDENT: Phillip A Wilkins & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claremont Legal

Orders

It is ordered, until further order that:

1. The Mother has sole parental responsibility for X, born … 2013 (“X”).

2. X shall live with the Mother.

3. The Father is not entitled to spend time with X other than in accordance with these Orders.

4. The parents do all things necessary to engage in therapy with Dr B, clinical psychologist, as follows (noting that Dr B can see the family in November 2019):

   (a)       For the purpose of therapy directed to X and the parents:

   (i)To assist X to know who his Father is;

   (ii)To prepare X, the Mother and the Father for the introduction of X to the Father; and

   (iii)Unless contraindicated by the above two steps, to facilitate and support X in meeting and spending time with the Father;

   (b)To the extent possible, obtain a referral from a medical practitioner for a mental health plan through Medicare Australia;

   (c)       Attend any appointments scheduled by Dr B;

   (d)The Mother is to ensure the child’s attendance upon Dr B as required;

   (e)       To follow all recommendations as provided by Dr B;

   (f)The Father is solely responsible for the costs of attending upon Dr B in the event that any fees are payable to her.

5. Should the Father spend time with X in accordance with the above therapy, he is restrained from removing X from the presence of Dr B.

6. The Independent Children’s Lawyer has leave to provide a copy of the Family Report dated 19 June 2019 prepared by Ms C, any reasons for judgment, copies of any documents relied upon by the parents at the final hearing to Dr B and a copy of these Orders.

7. The Father and Mother must:

   (a)Contact the Redfern Family Relationships Contact Centre (“the Contact Centre”) within 14 days and arrange an appointment for assessment for suitability for supervision of the time the Child spends with the Father;

   (b)       Attend the assessment;

   (c)Comply with any appointments made by the Contact Centre for supervised time;

   (d)Comply with all reasonable policies and rules of the Contact Centre; and

   (e)Comply with all reasonable requests or directions of the staff of the Contact Centre.

8. The matter is adjourned part heard for final hearing.

Notation: It is intended that the final hearing will take place shortly following the completion of the therapy with Dr B.

1. The parties are at liberty to seek the urgent relisting of the matter.

2. The matter is otherwise listed for further directions on 20 January 2020 at 10am, with the parties to attend by video link from the Sydney Registry into the Canberra Registry of the Family Court of Australia.

3. The Independent Children’s Lawyer shall use her best endeavours to obtain a report from Dr B in preparation for the final hearing. Each parent is equally liable for the costs of preparation of that report in the event that Legal Aid is unable to fund such report.

4. The Mother’s application to change X’s name is adjourned to the further hearing of this matter.

5. The Mother’s application for orders pursuant to s 68B of the Family Law Act 1975 (Cth) is dismissed.

6. The Father and the Mother, by themselves, their servants, or their agents are restrained from removing the child X born in 2013 from the Commonwealth of Australia.

7. The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.

8. The Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. 

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC3586 of 2015

Mr Ishmal

Applicant

And

Ms Karaja

Respondent

REASONS FOR JUDGMENT

1. The parties are in a parenting dispute about X, who is six years old having been born in 2013.  The Mother is an Australian citizen.  The Father lives in Australia and is from Country D.  The parties married in Country D in 2012.  The Mother shortly thereafter returned to Australia having fallen pregnant.  The Father travelled to Australia in 2013 when X was about six months old.  The parents separated following a short period of cohabitation; separating in November 2013 at about the time the Father suffered from a stroke.  The Father has not spent time with X since then.  X lives with the Mother and with Y, his now 15-year-old sister. 

2. The key factors in the dispute between the parties are as follows. Firstly, X has no knowledge of, or relationship with, the Father, nor is he going to have one if it is up to the Mother.  Secondly, the Mother alleges that the Father has engaged in family violence to her and to Y, and that X has been exposed to this and that there is a risk to X and a risk to the Mother.

3. In that context, the Mother seeks sole parental responsibility, that there be no time with the Father, that X has a change of his name and that injunctions made for her and X’s protection. 

4. In contrast, the Father seeks an order for equally shared parental responsibility with time graduating to weekend time each weekend along with some time during the school holidays.

5. The Independent Children’s Lawyer (“the ICL”) has proposed that there be interim orders, that the proceedings be adjourned to allow therapeutic intervention by Dr B to assist in X’s reintroduction to his Father and then for the matter to return for further hearing after that therapy has taken its course. 

6. This matter is to be determined on what is in X's best interests. Those are to be determined on a consideration of the matters contained at s 60CC of the Family Law Act 1975 (Cth) (“the Act”). The primarily engaged, or dominant, considerations that were emphasised by the parties are the primary considerations which involve the benefits for X in having meaningful relationships with each of his parents and the protection of X from harm due to exposure to family violence.

7. The evidence also addressed X’s views, the nature of his relationships, parenting capacity, the parents fulfilling or failing to fulfil their obligations to support X, the effects on X of a change in circumstances, practical difficulties for X spending time with the Father, X’s own characteristics, the fact that there is alleged to have been family violence and that there have been family violence orders and, given the floating of the possibility of the making of interim orders, whether or not it is preferable to make the orders least likely to lead to further litigation.  It does no injustice to this list to note that a consideration of the two primary considerations subsumes into itself the bulk of the additional considerations, particularly given the factual emphasis that has been brought by the parties.

8. The Mother alleges that in the lead up to the parties’ separation there was family violence by the Father.  That consisted of verbal abuse of the Mother and alleged controlling, coercive conduct by the Father, verbal abuse of Y and physical abuse of Y.  There was no physical abuse of either the Mother or X alleged. 

9. Although the Mother alleged in her affidavit that Y was generally physically hit on the arms, legs and body those were not matched in her actual description of the two events that she says that she observed.  In her oral evidence her observation was limited to two examples of physical violence on Y. 

10. The first I will call the chip incident and is where the Mother alleged that the Father grabbed Y and pulled her from the lounge.  That account was not contained in her affidavit, other than referred to in a document associated with the affidavit being a police statement given by the Mother.  The oral evidence of the Mother in cross-examination about that incident fell short of what was contained in the police statement.  The Father denied the Mother's account, accepting that he had pushed Y, he says he pushed her out of the way while he cleaned up some vomit from X following on from Y giving X a chip. 

11. On either account there was an incident with physical interaction, but it does not rise to a level that would enable me to be satisfied that it was abuse. 

12. The second incident is where the Father was reported to have asked Y to hold one of X's hands but Y held both of his hands and that the Father then screamed at her and twisted her wrist and threw her to the ground.  Again, some sort of incident appears to have occurred.  The manner of the incident being denied by the Father.  Again, this is only referred to in a document associated with the Mother's affidavit being a police report and it was not introduced into her evidence by sworn testimony.

13. It was further alleged that the Father said that if it was his own daughter he would do worse.  I am unable to be satisfied as to what occurred on this incident or that it was an incident of abuse.  I am not satisfied that it occurred as the Mother has alleged.

14. The third matter that was raised by the Mother was an incident of sexual abuse of Y but that was presented to the Court with such minimal and summary evidence as to not enable either a finding that the sexual abuse occurred or that there was in fact a risk of any significance of such if the Father came into contact with Y, which is not proposed in this case, or if he comes into contact with any other child.  The strongest evidence was the reference to this incident in the Family Report at paragraph 59 where the Family Consultant referenced a subpoena produced by the Department of Family and Community Services which did not paint a picture of sexualised contact. 

15. I was asked to consider these incidents also in the context of violence by the Father in a previous relationship.  He admitted that he had punched his previous wife causing her to have eight stitches to her head and that he had also struck in some form his daughter of a previous relationship.  Although he denied these things to the Family Consultant and prevaricated about them in Court he eventually admitted to that violence.  The prevarication does not assist his credibility.  But what evidence was led of these incidents was insufficient to provide a context to allow the inference of propensity or tendency to anger and violence that was suggested by the Mother. 

16. Absent the physical abuse in the relationship and particularly absent any hint of violence to X or to the Mother, even with the past history of the Father towards his previous wife and child, it is insufficient to reach a level of a significant risk of violence to X.  This is so even though the Mother alleges that the Father was otherwise verbally abusive, degrading, coercive and controlling.

17. The parties gave conflicting accounts regarding their roles in the relationship and about verbal abuse occurring.  Given their competing accounts there can be little doubt that theirs was a difficult and unhappy, although short relationship. But in the context of concerns regarding each of the parties’ credibility for example, the Father's credibility regarding his assault on his previous wife, the Mother’s in relation to inconsistencies in her descriptions of the Father's pre-separation involvement with the children, for example, whether or not he would take Y to the park, the later concession that he did and her varying accounts about whether he looked after the children and to what degree, means that I cannot conclude that there was verbal abuse to the extent that it constituted control or coercion. 

18. I do not neglect the fact that the Father has breached the Apprehended Violence Order (“AVO”) that the Mother obtained against him.  The texts that he sent her in January 2014 resulted in no conviction being recorded pursuant to s 10 of the Crimes Act or the Sentencing Act (whichever is applicable).  They were seemingly innocuous texts.  There was also an admission by the Father that he had sent further texts despite the AVO from Country D.  Those texts were not produced.  I do not know what they say.  I do not know the significance of that breach of the AVO. 

19. However, in total, I do not conclude, particularly in the absence of face-to-face contact between the parties, that there is a likelihood of X being exposed to family violence on the part of the Father. 

20. It remains uncontroversial though that the Father has no relationship with X, that he has spent no time with X and that his introduction to X, if it is to occur, would involve significant change for X.  That is strongly against the Mother's views of what is best for X. 

21. It should also be noted that the Mother is the uncontested primary carer and that the Father is not critical of the Mother in that role or in the decisions that she has made for X, except for the decision that she has made to exclude X from the Father. 

22. X does not know his Father and was first told about his Father a short time before the Family Report interviews.  To him the Father is a stranger.  The Mother asserts that X has no curiosity or inquisitiveness about who his Father is nor has he expressed a desire to know his Father, although she also says he was not distressed at the prospect of meeting his Father. 

23. The Family Consultant's assessment was that X seemed not to even comprehend the concept of having a Father although he said to her “I don't have a Father and I don't want to see him”.  Ultimately, what X said about his Father was thought by the Family Consultant to be of little weight given X’s stage of development, his lack of knowledge of the Father or understanding of such a relationship and his young age.  I accept that assessment.

24. No observation took place of the Father and X because X does not know his Father, he said he did not want to and expressed no interest.  The Family Consultant, in making the choice not to observe X with his Father, noted that hers was an assessment process and that if an introduction between X and his Father was to occur it was best to do so in the therapeutic process in which it could be known that the child would see the parent again in the near future. 

25. The Family Consultant spoke to the benefits of relationships with both parents.   Generally, she said there are significant benefits to be derived from relationships with both parents.  Borrowing her understanding of this from what she described as the developed body of knowledge from the field of adoption, she said it was important for the development of self-identity for a child to know its history and background.  X does not have this at present.  She also noted that these matters become of increasing importance as a child enters adolescence. 

26. She noted there are long-term implications regarding relationships in a failure to know a parent.  It leaves what she described as an important gap, that may even impact on how X regards himself in the event that he should become angry or emotional.  It runs the risk that he might see himself as dangerous should he become angry and emotional.  It may leave him with unfounded fears about his unknown Father.

27. The Mother has previously said that she agrees that X should know the Father.  That was what she said the Family Consultant.  She had previously accepted that there should be supervised time between the Father and X.  It is also what she said to the Family Consultant. 

28. However, at present neither of these is on the table from the Mother's perspective.  The Mother says that on reading the Family Report and what Father said about her she was caused to change her mind.  She says that the Father has not conducted himself in a manner consistent with what she says she knows of the Father. 

29. The introduction of the idea of the Father to X only shortly before the family report interviews appeared to the Family Consultant to only cause X some confusion about his Father.

30. The Family Report recommends a cautious approach be taken for three reasons, being a cautious approach about whether X be introduced to his Father and how:

    a)X does not know his Father;

    b)There are very poor parental relationships; and

    c)The allegations made against the Father. 

31. She said she did not know how X would respond to meeting the Father.  She said if the matter did progress to X spending time with the Father in a contact centre it may take months to progress from that stage.  She noted that the Father had responded angrily to the idea of a contact centre during the interview but then accepted that if the orders provide for it, the idea of him getting to know X through a contact centre now constitutes part of his proposal. 

32. The Family Consultant concluded in cross-examination that therapy was the necessary gateway to a relationship between X and the Father.  The therapy would be a professional process towards reintroduction which would have potential benefits in that process even if the parents were resistant to that process, as it appears each of them is.  She said that this therapeutic process was important because of the risk that reintroduction could upend X's life in circumstances where the parents are unable to appropriately communicate information about the Father to him. 

33. She thought that therapy was important whether or not the Mother was supportive of the reintroduction.  She is not supportive the reintroduction.

34. In summary, she thought a therapeutic process is a necessary prerequisite to any introduction of X to the Father.  Reintroduction is dependent on therapeutic process which is designed to keep X emotionally safe.

35. The Family Consultant's view was that a contact centre might then allow a safe and consistent way for X to get to know his Father and that X seeing the Father at a contact centre would assist to contain the Mother's anxieties about spending time with the Father and minimise the impact of such on X. 

1. It is noted that if the Father was ultimately to spend time with X at a contact centre it is still carries the risk identified by the Mother that the Father would obtain information about the Mother's life.  For example, he would find out where X goes to school and where they live.  The Mother emphasised her fear of the Father becoming involved in her life again. 

2. The overall view of the Family Consultant was that if the reintroduction was safe for X, in the context of the allegations of family violence, there would then need to be a process to professionally prepare X for a reintroduction.  She noted that it may destabilise X’s apparently happy and well protected life and expose X to conflict and the Mother's anxiety.  Despite all of these, because of the benefits to long-term development it would be helpful for X to know his Father.  That is, X faces an important deficit in not knowing his Father.  He faces an upheaval in his life if he is to be introduced. 

3. It is appropriate to manage that process by therapy.  That therapy has an uncertain endpoint.  The implication is that it will require review. 

4. While the Mother disagrees with orders that the Father spend any time with X, she says she will comply with Court orders.  When asked by the ICL about her participation in therapy her responses gave no evidence or gave no confidence that she would genuinely participate in such.  There was little to derive confidence that the Father will genuinely participate in the therapy. 

5. There is good reason however, to expect that each will comply with that therapy.  I note that at this point there was a dearth of evidence about a therapeutic process other than the Family Consultant stipulating its necessity.  Helpfully and potentially indicative of a child focused approach the parents, while each not supportive of therapy, agreed with the ICL that Dr B was an appropriate person to undertake the therapeutic process that had been proposed by the ICL and the Family Consultant. This filled a potential gap in the evidence. 

6. Turning then to consideration of the remaining matters.  I propose firstly to deal with the question of parental responsibility.  I note that there is a presumption in favour of equally shared parental responsibility.  That is inapplicable where family violence has taken place.  I have not found such.  It is also displaced where it is not in the children's best interests. 

7. Here, it is not in X's best interests that there be an order for equally shared parental responsibility.  Practically the Father knows little of X.  He has no relationship with him at present and limited knowledge.  Even if he spends time with X he will still be limited in what he knows of X for a significant period. 

8. On the other hand, the Mother is the primary carer and there is no issue with the decision making or care that she has provided for X other than her exclusion of the Father. 

9. The vast gulf between the parents in this case renders meaningful discourse regarding long-term decision-making impossible, likely to result in conflict, and raises potential for X's exposure to the parents in conflict or to the consequences of that conflict. 

10. The parents would be incapable of complying with their obligations if an order for equally shared parental responsibility was made, being the obligations set out at s 65DAC.  Under those circumstances it is in X's best interests that there be an order for the Mother to have sole parental responsibility.

11. A question remains regarding the Father being informed about matters concerning X in terms of long-term decision-making for X.  In the light of the other orders that I intend to make in this case it will be necessary to return to that at the further hearing of this matter when the ultimate scope of the relationship between the Father and X may be better known. 

12. The second issue is should X spent time with the Father and if so, how.  That is a decision made in the face of uncertainty about how X will respond.  In the case of In the marriage of N & S[1] it was said:

    In many cases involving custody and access the Court is obliged to experiment.  It is only with the passage of time that one can measure whether or not the experiment has been successful.  Certainly the child should never be put into a life threatening situation.  But in many cases the Court is forced to choose between two or more less than satisfactory alternatives, each fraught with risk to the child.  Where the Court has to weigh up competing risks, such as in this case the risk of allowing access compared with the risk of not allowing access, the Court must often, by the very nature entailed in the process experiment.  Providing there is more to be gained from carrying out the experiment than not carrying it out, and providing the possible benefits to the child outweigh the possible detriments, the experiment may well be required to be undertaken to advance the welfare of the child. 

    [1] (1995) 19 Fam LR 837

13. Here, it is in the best interests of X to have a relationship with his Father, subject to a successful therapeutic process regarding reintroduction.  The Father does not present any significant risk of exposure to or subjecting X to family violence, abuse or neglect.  It is very important for X as he grows up and in coming to understand his own identity to know his Father.  Significant practical issues of X not knowing the Father, and the Mother being unsupportive although compliant to a process remain.  They point to a cautious introduction.  They point to a therapeutic introduction and if the therapy progresses well then a consideration of whether there should be ongoing structured time potentially through a contact centre.  They call for circumstances which will help X to feel secure in the care of the Mother, likewise for the Mother to have a basis for confidence that X will be okay. 

14. In the particular circumstances of the case, X’s best interest call for interim orders of the sort supported by the ICL rather than immediate finalisation. 

15. This is so despite the toll that prolonged litigation (and I note this has already been prolonged litigation) has on the parties, because to reap or potentially reap the long term benefits of knowing his Father, as recommended by the Family Consultant, in considering the capacity it will have to impact his formation of relationships, in understanding himself, to undermine the development of misplaced fears about his Father and to better understand and cope with his own experience or emotions, where the risks of introduction and change are ameliorated by the therapeutic process, means that orders which promote a meaningful relationship and the benefits thereof, generally as proposed by the ICL, should be made.  They deal with the uncertainty in knowing what X’s response might be.  The orders provide X and both of the parents with appropriate therapeutic support.  They are protective of X against the adverse effects of change.  They maximise the potential benefits of relationship for X and they will provide the evidence necessary for the Court to then consider what regime should govern time between X and his Father, if any. 

16. There was a contest between the parties as to how this process will be funded.  The orders should provide for the Father, if necessary, to pay as proposed by the ICL.  The evidence demonstrated that the Father has excess funds.  He made no objection to me via submissions that he could not pay, that is, no objection that he had a lack of capacity.  He pointed to fairness, so that out of fairness the parties should share that burden equally.  I am unconvinced that the Mother has a similar capacity to the Father, although I do not find that she has no capacity, but I am unconvinced that she has a similar capacity to him given her sole financial support of the children without any assistance from the Father.  The expenses of facilitating the time with X are appropriately met by the parent here who has the better capacity to do that, being the Father. 

17. Neither parent indicated in their submissions an incapacity to make payments for the preparation of a report should Legal Aid not fund the report.  It would seem essential that Legal Aid provides funding for this report however. 

18. The costs of the attendance of Dr B should she be required will be dealt with at further directions in this matter.

19. It should be recognised that embarking in even this part of a course of action the Mother's objections included the concerns of the Father discovering information about her and coming back into her life.  I accept there is a strong likelihood that the Father will discover information such as X’s school.  The evidence does not reveal a likelihood that he will attempt to re-enter the Mother's life.  Anything that could have indicated that likelihood for example, the text which was sent in breach of the AVO, are now very dated, appeared innocuous and the passage of time since do not reveal that there is an ongoing risk that he would seek to reintroduce himself into the Mother's life, especially in the context of his evidence, where he expressed positively that he did not have such a desire. 

20. While the Mother sought injunctive protection, and it is clear that the Mother does not want anything to do with the Father, the factual basis for the injunctive relief has not been made out given my previous findings about family violence.  I will not make the injunctive orders.

21. Of course it should be remembered that if the Father conducts himself poorly towards the Mother pending further hearing of this matter then I will be confronted with a very different set of circumstances on that occasion which may prompt a further examination of this particular issue.

22. The Mother seeks a restraint on X's removal from Australia.  It is appropriate that I make those orders given orders that I make about the Mother having sole parental responsibility and there being no current prospect of the Father spending time with X sufficient to enable his removal from Australia.  Given the adjournment which will necessarily accompany these orders, the orders will be made until further order. 

23. The name change issue should be dealt with in the context of the finalisation of these proceedings.  That is appropriate as the application was made with little notice and has not been able to be met with evidence yet.

24. Given the expectation that Dr B will see the parties in November this year and the delays that have attended this case I will list the matter for directions in January 2020 with the intention of shortly thereafter bringing the matter on for resolution dependent on how the therapeutic process has unfolded.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 1 August 2019.

Associate: 

Date:  20 August 2019