Jagi & Gaba (No. 2)
[2021] FamCA 454
•29 June 2021
FAMILY COURT OF AUSTRALIA
Jagi & Gaba (No. 2) [2021] FamCA 454
File number(s): PAC 1407 of 2017 Judgment of: MACMILLAN J Date of judgment: 29 June 2021 Catchwords: FAMILY LAW – RELOCATION – where the mother relocated to Melbourne with the child and the father sought orders for the child’s return and that the child live with him – where the mother alleged that the child had been sexually abused by the father – where notwithstanding the allegations of sexual abuse the parties agreed to engage in family therapy and the reintroduction of the child spending time with the father, including overnight time – where the father seeks orders for equal shared parental responsibility and final orders for the child to spend time with him –where orders made that the mother have sole parental responsibility, the child live with the mother and spend time and communicate with the father. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC,102NA Cases cited: Donnell & Dovey [2010] FLC 93-428
Keane & Keane [2020] FamCA 99
M v M (1988) 166 CLR 69
Mulvany & Lane [2009] FLC 93-404
Number of paragraphs: 85 Date of last submission/s: 1 March 2021 Date of hearing: 17th – 20th February 2020 and 4th September 2020 Place: Melbourne Solicitor for the Applicant: Adam Jones Solicitor Counsel for the Respondent: Ms O’Connell from 17 – 20 February 2020
Self-represented on 4 and 16 September 2020Solicitor for the Respondent Cathleen Corridon and Associates from 17 – 20 February 2020
Self-represented on 4 and 16 September 2020Counsel for the Independent Children's Lawyer: Ms Mansfield Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
PAC 1407 of 2017 BETWEEN: MR JAGI
Applicant
AND: MS GABA
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
MACMILLAN J
DATE OF ORDER:
29 JUNE 2021
THE COURT ORDERS THAT:
1.All previous Orders be discharged.
2.The Mother have sole parental responsibility for the child and in the exercise of sole parental responsibility:
(a)the Mother advise the Father by email one (1) month prior to any proposed change to the children’s respective schools and/or any proposed medical treatment unless it is an emergency treatment in which case the Mother shall notify the Father by email or text as soon as practicable after the said treatment;
(b)As soon as practicable and in any event not more than seven (7) days after being so advised the Father provide a response by email to the proposal to the Mother;
(c)That the Mother, having considered the Father’s response to the proposal or in the event that the father has not provided the Mother with a response within the seven (7) day period in accordance with Order 2(b) hereof may make the decision; and
(d)As soon as practicable and in any event not more than twenty-four (24) hours after making her decision the Mother advise the Father by email of her decision.
3.The child X born … 2011 live with the Mother.
4.The child spend face to face time and communicate with the Father as follows:
(a)On 3 occasions from the conclusion of school or 3.00 pm if not a school day commencing on Friday 9 July 2021 until 5.00pm on Sunday 11 July 2021 and each alternate weekend thereafter;
(b)From the conclusion of school or 3.00 pm if not a school day on Friday 20 August 2021 until the commencement of school or 9.00 am if not a school day on Monday 23 August 2021 and each alternate weekend thereafter;
(c)From after school or 3.00 pm if not a school day on Thursday 15 July 2021 until the commencement of school or 9.00 am if not a school day on Friday 16 July 2021 and each alternate Thursday thereafter;
(d)From after school on the last day of school term at the commencement of the 2021 Term 3 school holidays until 5.00 pm on the fifth day of those holidays;
(e)For the second half of the 2022 school term holidays and each alternate year thereafter from 12.00 noon on the middle Saturday of the holidays until 5.00 pm on the last day of the holiday period;
(f)For the first half of the 2023 school term holidays, commencing at the conclusion of Term 3, and each alternate year thereafter commencing at the conclusion of school on the last day of school term until 12.00 noon on the middle Saturday of the holidays;
(g)During the long summer school holidays commencing in 2021/2022 on a week about basis commencing on the first day of the holiday period with the child to be back in the Mother’s care 48 hours prior to the commencement of the school year;
(h)For the first half of the 2022/2023 summer holidays and each alternate year thereafter from the conclusion of school on the last day of school term until 12.00 noon on the day that falls in the middle day of the summer school holiday period;
(i)For the second half of the 2023/24 summer holidays and each alternate year thereafter, from 12.00 noon on the day that falls in the middle of the summer holiday period until 5.00 pm on the Father’s half of the summer holiday period to be calculated based upon the number of days excluding the day before school recommences;
(j)On the child’s birthday:
(i)If the child is not in the Father’s care from after school until 6.00 pm on the child’s birthday if it falls on a school day or from 10.00 am until 3.00 pm on a non-school day; or
(ii)If the child is in the Father’s care the Father’s time with the child be suspended from after school until 6.00 pm if it falls on a school day or from 10.00 am to 3.00 pm on a non-school day.
(k)On Father’s Day, should the child not be in the Father’s care, from 10.00 am until 6.00 pm, and should Mother’s Day fall during times the child is otherwise spending time with the Father then the Father’s time be suspended from 10 am on Mother’s Day;
(l)For the Diwali festival from the conclusion of school or 3 pm on the day before the Diwali Festival until 5.00 pm in odd numbered years;
(m)By way of telephone or Skype or such other electronic means with the Mother to initiate the call and the child to be afforded the privacy to speak and interact with the Father as follows:
(i)During school term from 6.00 pm to 6.30 pm each Sunday and Wednesday when the child is not in the Father’s care; and
(ii)During school holidays when the child is not in the Father’s care from 6.00 pm to 6.30 pm each Sunday and Wednesday.
5.For the purposes of the child spending time with the father pursuant to paragraph 4 hereof changeover is to occur at the Child’s school at the conclusion and commencement of school or on a non-school day at E Shopping Centre McDonald’s in Suburb G.
6.The Mother and Father keep the other informed of their residential address, telephone numbers and email addresses at all times.
7.The Father be at liberty to attend all school and extra-curricular events that parents are invited to attend, save that he inform the Mother in advance of his intention to attend, if possible no later than 48 hours prior to such an event.
8.The Father be at liberty to obtain, at his own expense, copies of all school reports, access to the school portal/platform, school photographs, newsletters and the like, and he be at liberty to provide a copy of these Orders to the child’s school/s.
9.The Father and Mother communicate via Smartphone App or email with respect to any issues pertaining to the child, and not pass messages or information to the other via the child.
10.The Mother and Father and their servants and agents be and are hereby restrained from:
(a)criticising, insulting, belittling, abusing, or otherwise denigrating the other parent or a member of their immediate household, or allowing any person to do so in the presence or hearing of the child; and
(b)discussing these proceedings in the presence or hearing of the child, or allowing any other person to do so.
11.The Father MR JAGI born … 1982 and the Mother MS GABA born … 1983 by themselves, their servants and/or agents, be and are hereby restrained from removing the child X born … 2011 (female) from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the names of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child name on the Watch List for a period of three (3) years from the date of these orders or until further order of the Court.
12.As soon as practicable the Court forward a copy of this order to the Australian Federal Police.
13.The Independent Children’s Lawyer be discharged.
14.That all extant applications be otherwise dismissed and the matter removed from the list of cases awaiting hearing.
15.All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jagi & Gaba has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MACMILLAN
These are parenting proceedings involving the parties’ nine year old daughter X (“the child”) born in 2011. At the commencement of the proceedings in February 2020 the father sought orders for the return of the child to Sydney and that thereafter the child live with him and spend time with the mother. The mother’s case was that the father had sexually abused the child and presented an ongoing risk of abuse to the child and on that basis any time the child spent with him should be supervised.
It became clear during the hearing in February 2020 that the evidence would not support a finding that the child had been sexually abused by the father as alleged by the mother or that there was an unacceptable risk that the father would sexually abuse the child if orders were made for her to spend time with him. It was in that context that the father and the mother agreed to engage in family therapy with a view to re-establishing the child’s relationship with the father. The matter was otherwise adjourned for further hearing on 4 September 2020.
BACKGROUND
The father was born in 1982 and is 38. The mother was born in 1983 and is 37. Both parents were born in Country H.
The parties were married in 2010. Their marriage was arranged by their respective families. In October 2014 the family immigrated to Australia initially living in the western suburbs of Sydney. In April 2015 the mother relocated to Canberra with the child to take up new employment. The father remained in Sydney and visited the mother and child on weekends. The mother and child lived in Canberra for approximately one year. In May 2016 the mother and the child returned to live with the father in Sydney. The parties separated finally in August 2016.
The father says that following separation the mother failed to facilitate the child spending time with him and as a result, on 29 March 2017 he commenced proceedings in the Federal Circuit Court of Australia at Parramatta (“the Federal Circuit Court”). On 28 April 2017 the mother relocated to Melbourne with the child. The father’s case was that she did so without his prior knowledge or consent. This does not appear to be disputed by the mother.
On 9 May 2017 Judge Newbrun made inter alia interim orders by consent in the following terms:
(a)For the child to spend time with the father every third weekend alternating between Melbourne and Sydney and the parents to share the costs of travel;
(b)The mother to facilitate video calls between the child and the father at least twice a week at a time suitable for the child and the father to be permitted to telephone the child;
(c)The parties to immediately inform the other by telephone or text of an illness, hospitalisation or emergency experienced by the child;
(d)The mother to keep the father informed by email of any change to the child’s school; and
(e)The parents to advise the other by text, telephone or email in relation to changes in residential address, phone number or email;
(f)Restraining the father and mother from removing the child from Australia; and
(g)Placing the child on the Airport Watch List.
On 7 June 2017 the mother filed a Response to the father’s Initiating Application. Although the mother sought to be excused from particularising any final orders, she sought orders on an interim basis, including that the child spend time with the father during the day, increasing to overnight time.
On 3 July 2017 the father filed an Amended Initiating Application seeking orders that the child live with him in Sydney, instead of with the mother as per his original application, and spend time with the mother every second weekend during school term and for half of each school term holidays. On 28 July 2017 the father filed an Application in a Case seeking orders that the child be returned to Sydney and live with him pending the final hearing. The father’s case was based upon his evidence of the mother’s failure to comply with the orders that the child spend time and communicate with him.
The father’s Application in a Case filed 28 July 2017 was listed for hearing on 22 December 2017. On that date Judge Newbrun ordered that both parties to file and serve a proposed minute of their primary parenting orders and a proposal in the alternative. The court thereafter reserved its decision.
The mother alleges that in February 2018, after spending time with the father, the child disclosed that the father had touched her private parts when she was bathing. It is accepted that when the child talks about having a bath she means a shower. The mother did not report the matter to either the Police or welfare authorities or seek to reopen her case following the child’s disclosure and the child continued to spend time with the father.
On 30 April 2018 Judge Newbrun dismissed the father’s interim application for the child to be returned to Sydney and live with him pending the final hearing and discharged the interim parenting orders made on 9 May 2017. He made further orders that the child live with the mother and spend time with the father every third, sixth and ninth weekend alternating between Melbourne and Sydney and for half of the school holidays. The orders also made provision for the child and the father to communicate twice a week during school term and three times per week during school holidays.
The mother deposes that on 30 April 2018, following that hearing, she took the child to the nearest Police Station to report the disclosures she said the child had made of sexual abuse in February 2018. A report was made to the Department of Health and Human Services (“the Department”) on 1 May 2018. On 3 May 2018 the child was interviewed by Victoria Police in relation to the allegations of sexual abuse by the father (“VARE Interview”). The child was interviewed at school by Department workers on 15 May 2018 and again on 4 September 2018. The mother made a formal statement to Police on 16 May 2018.
On 25 June 2018, following the VARE interview with the child, Victoria Police advised the Department that there were inconsistencies in what the child had said, including whether the incidents had taken place in New South Wales (“NSW”) or Victoria, and evidence of the child having possibly been coached by the mother, and that they had referred the matter to NSW Police. On 23 November 2018 NSW Police advised that they were not likely to be laying charges against the father for the alleged sexual abuse.
On 24 August 2018 the Department substantiated the risk to the child of sexual and emotional harm naming the father as being responsible for that harm. On 13 November 2018 a further report was made in relation to the incident in February 2018.
On 13 December 2018 the matter was transferred to the Family Court of Australia at Parramatta and on 18 January 2019 it was referred to the Magellan List and orders were made for the appointment of an Independent Children’s Lawyer (“ICL”) and for the preparation of a Magellan Report.
On 15 April 2019 Hannam J dismissed the father’s outstanding Application in a Case for the return of the child to Sydney and interim residence and transferred the matter to the Melbourne Registry of this Court.
On 3 July 2019, following its transfer, the matter was listed for hearing before a Registrar and orders were made for the appointment of an ICL and an updated Magellan Report. On 21 August 2019 the matter was listed for hearing in the Senior Registrars Duty List and an order was made by consent that the father attend upon Dr J for a psychosexual assessment. The matter was thereafter adjourned for hearing on 18 September 2019. On 5 September 2019, in anticipation of that hearing, the father filed an Application in a Case seeking that he spend supervised time with the child on an interim basis.
On 18 September 2019 the father’s application for supervised time with the child was reserved for judgment and orders made inter alia by consent as follows:
(1)The parties are restrained by injunction from allowing or permitting the child to engage in other counselling or therapy without the prior written consent of the ICL and the other parent; and
(2)That the mother and father do all acts and things necessary to ensure the child’s attendance for counselling on Ms B, with each parent to attend for a preliminary session and then comply with all directions of Ms B as to attendance. This counselling was also ordered to be reportable and the ICL was ordered to be at liberty to liaise with Ms B as to the progress of the counselling and provide reports as requested.
It was further ordered not by consent that all previous orders for the child to spend time and communicate with the father were suspended save for order 7 made 30 April 2018 for communication by skype, subject to any other order concerning the father’s application for supervised time (with this decision reserved for judgment delivery).
On 25 September 2019 the Senior Registrar dismissed both the father’s Application in a Case seeking supervised time and the mother’s Response. All extant applications in this matter were thereafter adjourned for final hearing as a four day matter, listed to commence on 17 February 2020, and directions were made for the purposes of that hearing, including the preparation of a Family Report and an order that s 102NA of the Family Law Act 1975 (Cth) (“the Act”) applied.
THE FINAL HEARING: FEBRUARY 2020
The final hearing commenced on 17 February 2020. At the commencement of the hearing the father’s case was that he had not sexually abused the child and that the Court could be satisfied that he did not pose an unacceptable risk of harm to the child and that to the contrary it was the mother who posed an unacceptable risk to the child of psychological abuse. On that basis it was his case that the child should live primarily with him and he proposed to live with the child in Sydney.
The mother’s case at the commencement of the hearing was that the father had sexually abused the child, and on that basis she sought sole parental responsibility and that the child should not spend any time with the father. In the alternative if the Court found that the father did not pose an unacceptable risk of abuse to the child, it was her case that the child should spend supervised time with the father once a month, with the father to bear the cost of that supervision, and to otherwise communicate with the father each Wednesday by telephone or Skype between 6.00 pm and 6.30 pm.
On 17 February 2020 the father changed his proposal and prepared a “Statement of Evidence” outlining his new proposal. The father’s case was that if the Court determined the child should live with him then he would move to Melbourne in six months or if the court were to order that he should spend substantial and significant time with the child he would move to Melbourne in eight months.
On 20 February 2020 at the conclusion of the evidence, the parties and the expert witnesses having been cross-examined and the Court having viewed the VARE interview, I made the following orders :
1.The matter be listed as a part heard matter before Justice Macmillan at 10am on 4 September 2020.
2.Order 8 of orders made 30 April 2018 be varied, so that the Father and the child X born … 2011 communicate via Skype/FaceTime/telephone once a week each Wednesday between 6pm to 6.30pm, for not less than 5 minutes and not more than 10 minutes with the Mother to facilitate the call to the Father on behalf of X, and should Ms B recommend an increase in Skype communication, then that occur each Sunday between the same hours and for the same duration in addition to the Wednesday.
3.The parents be equally responsible for the costs of counselling, and a further report from Ms B.
IT IS ORDERED BY CONSENT THAT
4.That X continue to attend upon Ms B for ongoing reportable therapeutic counselling to support her in spending time with her father.
5.The parents do all such things to ensure the child attend upon Ms B and comply with all reasonable recommendations of Ms B including any recommendation for increased Skype communication.
6.That X spend time with the father on a supervised basis in conjunction with therapeutic intervention, such time to be supervised initially by Ms B during therapeutic sessions when and as directed by Ms B, and such time to occur in this setting for a period of not less than six months.
7.That the mother and father attend upon Ms B as directed for ongoing assistance in relation to supporting X’s reunification with the father.
8.The parents be equally responsible for the costs of counselling, and a further report from Ms B.
9.The parties give Ms B authority, and Ms B be at liberty to liaise with:
a. The child’s school;
b. Dr C or any other agreed paediatrician the child is taken to;
c.Any treating counsellor/psychologist of the parents, to the extent that any communication between them is limited to discussions as to the ability, or inability, of the parents to support the redevelopment of the relationship between the Father and the child; and
d. The Independent Children’s Lawyer.
10.It is requested that Ms B provide an updated report as to the progress of the counselling and the reunification of X and her Father on or before 17 August 2020.
11.That the parties do all things necessary to ensure that X attend upon Dr C, paediatrician as soon as practicable, for a developmental assessment, or such other paediatrician as agreed between the parties.
12.The parents be equally responsible for the costs of the paediatrician.
13.The Independent Children’s Lawyer be permitted to provide to Ms B these orders, any Judgement or further orders of this court, and she be at liberty to request from the Independent Children’s Lawyer a copy of any such documents filed in these proceedings she believes would assist in the therapeutic process.
14.The Independent Children’s Lawyer be permitted to provide to Dr C copies of the following:
a.Family report of Ms K dated 9 December 2019;
b.Therapeutic report of Ms B dated 10 February 2020;
c.Magellan Report dated 27 February 2019 and addendum dated 18 July 2019; and
d.Any Judgements, these orders and any further orders of this court.
15.That there be liberty to apply at short notice to the chambers of Justice Macmillan in the first instance.
16.The Father’s legal representative be at liberty to appear by telephone on 4 September 2020.
On 4 September 2020 the matter was listed part heard for hearing before me. The mother’s solicitor had filed a Notice of Ceasing to Act on 20 March 2020 and the mother did not have legal representation for the purposes of the part-heard hearing on 4 September 2020. With the evidence in this matter having been completed in February 2020, this date was primarily for the purposes of the parties to provide an update as to the progress, if any, of the child’s reintroduction to the father and to make any further submissions in support of their respective proposals.
The parties having made submissions with respect to the orders they each sought in the interim, I made orders that the parties and the ICL file and serve any written submissions with respect to their proposals for final orders or such other disposition of the matter as they proposed. The applications for both final and interim orders was otherwise adjourned to a date to be fixed for judgment.
On 16 September 2020 I made the following interim parenting orders:
1. All previous spend time and communicate with Orders be discharged.
UNTIL FURTHER ORDER
2.That child X born … 2011 spend time and communicate with the father as follows:
(a)By way of telephone or skype or such other electronic means each Tuesday and Thursday from 6:00pm to 6:30pm or as the father and mother may otherwise agree with the mother to initiate the call and the child be afforded the privacy to speak and interact with the father; and
(b)Once a week for four hours for a period of four weeks supervised by a D Services or F Services commencing as soon as the family is accepted into one of those services;
(c)Thereafter on an unsupervised basis as follows:
(i)For four hours once per week for a period of four weeks;
(ii)From 10:00am to 5:00pm each Saturday for a period of four weeks;
(iii)From 10:00am Saturday until 10:00am Sunday for a period of four weeks;
(iv)From 10:00am Saturday until 5:00pm Sunday each alternate weekend.
(v)During Christmas 2020 from 3:00pm Christmas Eve until 12:00pm on Christmas Day save that if overnight time has not commenced from 10.00am to 2.00pm on Christmas Day.
3.That the mother, father and the child continue to attend upon Ms B on a monthly basis or as otherwise directed by Ms B, for the purposes of reportable family therapy.
4. The parties be equally responsible for the costs
(a)Supervision between the father and the child, including intake sessions, and a report, and
(b)Ongoing family therapy sessions with Ms B, and any further report obtained by her.
5.The mother and father communicate via a smartphone App or email with respect to issues pertaining to the child, and do not pass messages or information through the child.
6.As soon as practicable the Independent Children’s Lawyer provide Ms B with a copy of these orders.
7.That there be liberty to apply at short notice to the chambers of Justice Macmillan for an urgent listing of the matter.
IT IS NOTED
(A)The mother and father are requested to provide the Independent Children’s Lawyer an update as to the attendance of the child upon Dr C or such other paediatrician for a developmental assessment soon as practicable, providing any report obtained.
LEGAL PRINCIPLES
The objects, principles and the matters the Court must consider when making parenting orders are set out in Part VII of the Act. When the Court is asked to make parenting orders the paramount consideration is the best interests of the child the subject of the proceedings (s 60CA of the Act).
The Court must consider the matters in s 60CC(2) and (3) of the Act when it is determining what orders will be in the child’s best interests. When considering the matters in s 60CC(2) the Court is required to place greater weight on the need to protect the child from physical or psychological harm, and from being subjected or exposed to abuse, neglect or family violence (s 60CC(2A)). There is otherwise no primary or additional consideration that must be given any greater weight nor is the Court required to consider these matters in any particular order. The circumstances of each case are different and the weight to be placed on the various considerations will depend upon the circumstances of each case, in many cases some having greater relevance and significance with respect to the outcome than others.
The Full Court in Donnell & Dovey [2010] FLC 93-428 described the s 60CC considerations as (at [103]):
…a series of signposts the legislature has determined are potentially important for the court to take into account in exercising its very wide discretion. Some of the signposts will lead nowhere. In some cases one of the designated signposts will provide more assistance in pointing the court in the right direction than it will in another
And in Mulvany & Lane [2009] FLC 93-404, May and Thackray JJ observed as follows:
76.It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77.It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis in Original)
The Court must apply the statutory presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility for that child unless there are reasonable grounds to believe that a parent has abused the child the subject of the proceedings or another child of that parent's household at the time or engaged in family violence. The presumption in favour of equal shared parental responsibility can be rebutted by evidence that satisfies the Court that it would not be in the child's best interests for the parents to share parental responsibility. If the presumption does apply or the Court is otherwise satisfied that it is in the child's best interests and makes an order for equal shared parental responsibility, then it must consider whether it is in the child's best interests and reasonably practical to spend equal time with each parent or, if not equal time, whether it is in the child's best interests and reasonably practical for the child to spend substantial time with each parent.
The fact that there are allegations of sexual abuse, as there are in this case, does not alter the fact that the primary issue to be determined is what orders the Court should make that will be in the child’s best interests. As the High Court of Australia (“the High Court”) said in M v M (1988) 166 CLR 69 (“M v M”)(at page 76):
…The ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
The High Court continued with respect to how allegations of sexual abuse should be assessed (at page 76 – 78) as follows:
…In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A.), "an element of risk" or "an appreciable risk" (Marriage of M.), "a real possibility" (B. v. B. (Access)), a "real risk" (Leveque v. Leveque), and an "unacceptable risk": In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
(Citations omitted)
In the recent decision of Keane & Keane [2020] FamCA 99 (“Keane”) McEvoy J provided a helpful analysis of the way in which the Court addresses the question of whether the orders it proposes to make will pose and unacceptable risk of abuse to the child the subject of the proceedings before it. His Honour said as follows:
68.How the Court is to go about assessing whether there is an unacceptable risk of sexual abuse or risk of harm to the child involves, on the one hand, making findings of basal facts on the evidence before the Court and, on the other, using such facts as part of the predictive exercise in making findings about the possibility of the wider issue, that is any risk of harm posed to the relevant child or children which inform the parenting orders needed to resolve the dispute. The basal facts found, assessed in the light of all other relevant matters, form the factual substratum for an assessment of the unacceptability or otherwise of the risk.
69.The fact finding exercise is conducted in accordance with the civil standard of proof as provided in s 140 of the Evidence Act 1995. Importantly, s 140(2) reflects the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362 and referred to in M v M as applicable in circumstances where an allegation is one of particular seriousness or the consequences flowing from a particular finding are grave.
70.As Austin J observed in Fitzwater & Fitzwater, the conclusion reached by the Court in proceedings under Part VII of the Act, as reflected in whatever decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence. Critically, however, and as his Honour noted, the law draws a distinction between proof of historical facts and the prediction of future possibilities. Drawing on what the High Court said in Malec v J.C. Hutton (1990) 169 CLR 638 at 639 – 640 and at 643 (“Malec”), Austin J noted that in determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities.
71. In Malec, Brennan and Dawson JJ said (at 639 - 640):
… facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities… the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history… the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
72.In Fitzwater & Fitzwater, Austin J noted that although the High Court in Malec was referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction: see Oswald v Karrington (2016) FLC 93 – 726 at [60] and Bant & Clayton (2015) 54 FamLR 621 at [99], [107], [171] and [172]. His Honour considered, and I respectfully agree, that such application of principle is consistent with the principles essayed by the High Court in M v M.
73.Austin J’s analysis of the nature of the task confronting a trial judge of this Court when considering whether to make a parenting order in favour of a parent who is alleged to represent an unacceptable risk is, with respect, compelling and of considerable practical assistance. His Honour observed:
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
74.Although in Fitzwater & Fitzwater the majority expresses disagreement with Austin J on the proposition that s 140 of the Evidence Act has no role to play in a case where unacceptable risk of harm is alleged, their difference with his Honour on this point may be more imagined than real. Austin J does not contend that s 140 of the Evidence Act has no role to play in a case where an unacceptable risk of harm is alleged. His Honour’s point, consistently with M v M and Malec, is rather that the assessment of risk is predictive. While it will (and indeed must) be influenced by factual findings about past events, the risk assessment task itself involves considering all relevant matters, looking forward, and making a projection. This projection will in part be informed by past events which, consistently with settled principle, have been the subject of findings on the basis of s 140 of the Evidence Act.
(Citations omitted)
Although the child in these proceedings has been reintroduced to the father and is now spending unsupervised time with him, in her written submissions the mother submitted as follows:
I understand that the sexual abuse allegations raised by X have not been proven but I took as stand for what I was told by my daughter. At that point in that’s what my mind told me to do for the best interests of the child. And it was not easy for me to take her to the police station. I know the allegations have not been proven but I still have those concerns at the back of my mind.
In my view in circumstances where the mother is still expressing her concerns that the child has been sexually abused by the father and the Department substantiated the allegations of sexual abuse the Court must assess and make findings in relation to the alleged sexual abuse. Thereafter the Court must determine whether or not the father poses a risk of abuse, and if there is a risk assess the magnitude of that risk.
Having assessed the allegations and what if any risk either parent poses, whether that is the risk of sexual abuse or as the father submits the risk of the child being psychologically abused by the mother, the Court must then determine what orders will be in the child’s best interests having regard to that risk and the matters it is required to consider pursuant to s 60CC of the Act.
THE EVIDENCE
The applicant father relied on the following documents:
(a)Initiating Application filed 4 July 2017;
(b)Affidavit of Mr Jagi filed 19 December 2017;
(c)Affidavit of Mr Jagi filed 31 August 2020;
(d)Case Outline document filed 14 February 2020;
(e)Case Outline document filed 3 September 2020; and
(f)Written Submissions filed 1 March 2021.
The respondent mother relied on the following documents:
(a)Amended Response filed 6 November 2019;
(b)Affidavit of Ms Gaba filed 6 November 2019;
(c)Affidavit of Ms Gaba filed 2 September 2020;
(d)Case Outline document filed 11 February 2020;
(e)Case Outline document filed 3 September 2020;
(f)Affidavit of Ms Gaba filed 2 October 2020; and
(g)Affidavit of Ms Gaba filed 16 October 2020.
The ICL relied upon a Case Outline filed 14 February 2020 and Written Submissions filed 2 October 2020.
All parties including the ICL relied upon the following documents:
(a)Affidavit of Dr J filed 25 November 2019;
(b)Magellan Family Report dated 9 December 2019;
(c)DHHS Magellan Report dated 27 February 2019;
(d)DHHS Addendum to Magellan Report dated 18 July 2019;
(e)Report of Ms B dated 10 February 2020 (EXHIBIT ICL 1);
(f)Affidavit of Ms B filed 31 August 2020; and
(g)VARE tape of X recorded at Suburb L SCOIT on 3 May 2018 by Senior Constable Ms M.
Both parties and the expert witnesses were cross-examined.
ALLEGATIONS OF SEXUAL ABUSE
In her trial affidavit the mother deposed as follows:
230.The Applicant would constantly kiss X on the lips, which I found strange, as he never would kiss me on the lips during our relationship and men do not kiss women on the lips in our culture.
231. The Applicant would lick X on the face and neck.
232.On approximately six occasions from 2015, X had cuddled me and licked my face. When I questioned why she has done this, X said, “Father does it to me and has taught me”. When I asked X why she did not tell him to stop, she replied, “Mamma, I like it when he does it to me.”
233.Whilst we were living together in Australia, the Applicant would walk around the house in torn underpants only. He would allow his private parts to be visible and hang out from the worn places of his underpants. I would have to ask the Applicant to put on more clothes, as I did not believe it was appropriate for X to see him like that. On one occasion, X pointed to the Applicant’s genitals that were exposed from the torn parts or his underwear and asked me “Mamma what is this?”.
234.When the Applicant was to bath X, she would tell me that he would get in the bath with her.
235.I do not believe it is appropriate to bathe naked with X, particularly as she was six years old at the time.
236.In February 2018, X raised concerns that the Applicant was touching her inappropriately.
237.X said to me, “Daddy touches my private parts when he showers me and I don’t like it.
238.When I asked X to elaborate further, she said that the Applicant tells her he needs to clean her private parts which made her feel uncomfortable.
239.X said the Applicant holds the shower nozzle on her private parts which made her feel uncomfortable.
240.I told the Applicant that it was not OK that the Applicant touched her private parts and if he ever tried to do so again or shower her, then she should tell him strictly ‘no’.
241.I then showed X a video on YouTube about what is acceptable and not acceptable touching. I wanted X to be aware of good and bad touching and about safe circles, where children can name the people who they can rely on.
242.X told me of a program she watches at school called ‘N Program’ which focuses on making children aware of their private parts and teaching them about appropriate and inappropriate touching.
243.I believed it was due to watching this program that X raised her concerns with me.
244.I am not sure of the exact date when X told me that the Applicant puts his fingers inside her private parts.
245.When X first told me, I was very upset, I asked X why she did not tell him no and try to stop him. X replied, “Mamma, Papa does not listen to me”.
246.I regretfully did not report the allegations at this time, as I was scared and did not know what to do.
The mother further deposed that when she appeared by telephone at the hearing on 30 April 2018 she had not been able to either depose to her concerns in an affidavit prior to the hearing or raise those concerns during the course of that hearing. It was following that hearing that the mother says she took the child to the nearest Police Station to report the alleged sexual abuse.
When the mother made her statement to Police on 16 May 2018, she said that the child was telling her “that her Papa is touching her private parts, she only uses the word private parts. She has not told me exactly where he puts his finger but I believe she means her vagina”.
The mother was interviewed by the Department on 8 May 2018. According to the Magellan Report the mother provided the following information:
X had started telling her mother in February 2018 that her father touched her private parts and he had inserted his finger inside her vagina. She had alleged it had occurred in Melbourne and Sydney every third week when she had contact with him. X had also informed her mother that this had occurred when he was showering and bathing her, that X had told her she could bathe herself but her father had ignored her. Allegations also included Mr Jagi licking X on the neck, that he kissed her on the lips, and walking around the house in torn undies and his balls showing. The kissing on the lips allegedly occurred on multiple occasions and she told him to stop. Regarding the allegation of licking on her neck, Ms Gaba never confronted him regarding this. When they moved to Melbourne, X did this to her mother, and she asked her why she did this, X then told her about her father doing it to her. Ms Gaba stated that X had on occasion independently re-stated her father, she woke up and said “I'm happy don't have to go to father as he gives me lots of lollies and touches my private parts”.
The child was also reported by her teacher to have said after being away for the day that she had been at the Police Station “cause dad used to touch me on my private parts and he got in the bath and was very forceful”.
The child was interviewed by the Police on one occasion and by the Department on two occasions. The Police interview was conducted on 8 May 2018. During cross-examination Dr J, the psychologist who completed a psycho sexual assessment of the father and who has extensive experience dealing with victims of sexual assault and abuse as well as alleged perpetrators, having had the opportunity to listen the VARE tape of the child’s interview with the Police, highlighted the lack of detail, context and clarity provided by the child and the possibility, particularly having regard to the words the child used, that she had been coached by the mother. Her observations are consistent with my assessment of the child’s interview. Having viewed the VARE interview and more recently listened to it again it is easy to understand why both the Victorian and NSW Police declined to take any further action.
The child was first interviewed by the Department at school on 15 May 2018. The Magellan Report records (at page 3-4) as follows:
...X stated that “mum and dad had a fight yesterday cause he wanted to lie down on one side of the bed but mum didn't want him to so dad pushed mum and she fell down and got a sprained ankle”. X stated that this had occurred at home, and that they had moved a long time ago, and that this incident had occurred when they visited her father yesterday.
Regarding worries she might have, X stated “mum and dad fighting, sometimes when visit dad he says he might take me for seven days cause usually only go for one night and worry cause can't live without my mamma”. X stated her father doesn’t think she can wash herself, “so he pushes himself in (to the bathroom), before he used to touch my private parts and used to tell him no but he stilled used to do it but now he stopped” ... “he used to touch my private parts and didn't like it and told him to stop and he stopped” ... “he used to before, maybe when he lived in Sydney”.
Regarding anything happening since X had been travelling to Sydney, X replied “no”. Regarding when her father comes to Melbourne to visit if anything has happened, X replied “no”. Regarding if her father had ever helped put soap of her body, “yes, once he also said, think, told my dad that she (Ms Gaba) said not to give me a bath but dad said in between your legs has to be clean and said it can't just be done in one day but he didn't listen and he inserts his fingers between my legs”.
The child was again interviewed by Department workers at school on 4 September 2018. The report of that interview is as follows:
X was also interviewed on 04/09/18, at school. She repeated her statements of alleged harm, that her father “had touched her private parts but does not do this anymore”. Mishka [sic] stated her father tries calling, that “I don’t feel like talking so don’t talk, mum says need to talk or she will go to jail. He is mean, he is nice, but he touches my privates”. Regarding if she wanted to see her father, X stated ‘No, my mum doesn’t want me visiting dad and don’t want to visit either as he touches my private parts”. In further discussion, X was asked if she would like to see her father if someone else was present to make sure she was safe, X stated “good” and confirmed that she was wanting to see him with someone else. Regarding speaking with her dad, X said she was wanting to speak with him but less. X confirmed that no-one had told her to say things about not seeing her dad. X followed this by saying that she “wants a person staying there and 1 don’t want to stay by myself with dad”.
The father’s response to the allegations of sexual abuse commencing at para 108 of his trial affidavit was as follows:
108.I applied the QV wash all over her body except the face and hair. Near the genital area, I applied it superficially. I then turned on the shower near her genital area and asked the Child to wash the soap out from that area. I then showered the rest of her body. After bathing, wrapped the Child in a towel and brought her to the room for drying.
109.I dried her body completely with the towel including the genital area but did not, at any, touch her genital area with my hands using the towel instead. After drying I applied oil on her body including the arms, legs, back and the stomach area. All of the treatments that I applied to the Child were on the express recommendations of the Child’s treating physician.
Dr J in her psycho sexual assessment of the father noted that the father had no formal sexual offence history, criminal record or current criminal charges and that he disputed the allegations of sexual abuse. It was her opinion that the father, having presented with 3 of 22 RSVP risk markers typically associated with sex offending, his risk for sexual recidivism falls within the low range and that there was insufficient evidence to suggest that the father “has sexually offended in the past or will do so in the future.” Although Dr J was cross-examined about her conclusions I found her to be a considered and cogent witness and I accept her evidence.
Both the father and the mother were cross-examined in relation to the allegations of sexual abuse. In cross-examination the father’s evidence with respect to the alleged sexual abuse was both direct and consistent with his sworn evidence. Whilst he, like the mother, may lack some insight into the needs of the child I am satisfied that he was a truthful witness. His evidence in relation to bathing the child was also corroborated by other evidence including the text message instructions sent by the mother to him on 20 May 2017.
The mother on the other hand was not a particularly good witness. She had difficulty addressing the inconsistencies in her evidence and what she had told the Police and the Department and the inconsistencies between the evidence generally and her view as to the risk to the child in the father’s care. The mother’s explanation as to why she had waited to report the alleged sexual abuse was difficult to understand if she had immediately accepted, as she now says she did, that the father had sexually abused the child. Her evidence with respect to telling the child to be more assertive and the fact that she did not stop the child’s time with the father or report the matter suggests that either the child did not say what she now says the child said or that she did not take the allegations as seriously as she now says they are.
The child’s use of the word “insert” is one example which suggests that the child may have either been coached or had possibly overheard something the mother said. Firstly it is not a word that one might have expected a child of her age to use and even more importantly it is not a word the mother said she used when she first disclosed the alleged abuse. The mother seemed unable to acknowledge the possibility given the words used by the child that, even if she had not been coached, she may have overheard something the mother said.
The mother’s response to the VARE interview was also concerning in circumstances where she seemed to believe that it supported her case that the child had been sexually abused and could not see the issues it raised.
Notwithstanding the Department’s assessment that the child was at risk of sexual harm by the father, I am not satisfied on the balance of probabilities that the child was sexually abused by the father. To the contrary I am satisfied having considered all of the evidence that the father was bathing the child as he had done on previous occasions and even if the child may have not wanted him to bathe her that his actions were not sexual in nature. The matters which I have considered in reaching this conclusion include, but are not limited to the following:
·My assessment of the evidence of both the father and the mother;
·The inconsistencies in the mother’s evidence and the reports she made to the Department and the Police;
·The fact that, notwithstanding that it is her evidence that the child disclosed the abuse some months before, the mother did not report the matter to the Police until after orders were made further providing for the child to spend time with the father;
·The child’s lack of context and clarity and her confusion around what she said had occurred when interviewed by the Police;
·The language used by the child;
·The inconsistencies between what the child allegedly told the mother and what she told the Police and the Department workers; and
·Dr J’s opinion based upon her psychosexual assessment of the father that his “risk for sexual recidivism falls within the Low range”.
I do not agree, as described in the Magellan Report, notwithstanding that the Department acknowledged that it was possible that the child may have been coached, that her disclosures were both clear and consistent. That was certainly not the case during the VARE interview. Even if the mother has not actively coached the child to make false allegations I accept, as the family consultant said, that there is significant family discord and that the mother being the child’s primary source of support and comfort it is likely that the child would have been well aware of her mother’s views of the father and her fears for her safety in his care.
Even if the Court is not satisfied that the child has been sexually abused by the father it is required to assess what if any risk there is of sexual abuse in the event that the child is to spend time with the father in the future and the magnitude of that risk. In circumstances where I have found that I am satisfied that the father’s actions were not sexual in nature I am not satisfied that there is any risk of the child being sexually abused in the father’s care. Even if there was a risk in my view, given the circumstances in this case, that risk would not be unacceptable. I am supported in this view by the fact that the child has been spending unsupervised time with the father for some time and there have been no issues raised with respect to the child in his care.
SECTION 60CC CONSIDERATIONS
As previously referred to at the commencement of the case on 20 February 2020 the father gave evidence as to his intention to relocate to Melbourne in order to develop his relationship with the child. For various reasons including the impact of the COVID-19 pandemic the father was unable to relocate to Melbourne until September 2020. As a result of the restrictions on face to face appointments following his relocation by the time of the hearing on 4 September 2020 the child had only spent face to face time with the father on two occasions.
I am satisfied that the child has in the past benefited from her relationship with the father and his decision to move to Melbourne demonstrates a significant commitment to that relationship and insight into her needs.
The parties, as demonstrated by them having agreed upon a process designed to reintroduce the father to the child, have acknowledged the importance of the child having a relationship with the father and demonstrated their commitment to that relationship. They were also able to agree upon a move to face to face time with the father, including unsupervised and overnight time albeit they did not agree upon how much time the child should spend with the father.
Pursuant to the orders made on 16 September 2020 the child has now been spending unsupervised and overnight time with the father since late 2020. Although the orders provided for an urgent listing on short notice if required neither the father nor the mother or the ICL have sought to reopen the matter to adduce further evidence. I accept as submitted by the father, that in these circumstances, it is reasonable to infer that the arrangements for the child to spend time with the father have proceeded smoothly.
The issues the Court must determine are now limited to whether the parties should have equal shared parental responsibility for the child or whether the mother should have sole parental responsibility and whether the time the child spends with the father should be as the mother submits two nights per fortnight during school terms and four nights per fortnight during school holidays or be as the father submits increased to five nights per fortnight over a twelve month period during school terms and after two shorter holiday periods for half of all school holidays.
The ICL’s case was, that although neither party had adduced any evidence in support of their allegations of family violence, family violence was likely to be a feature of the father and mother’s relationship and the presumption in favour of equal shared parental responsibility therefore does not apply. In the absence of that evidence and notwithstanding that the Senior Registrar made an order pursuant to s 102NA of the Act I am not satisfied on the balance of probabilities that the child has been exposed to family violence. In circumstances where I have found that I am not satisfied that the child was sexually abused by the father I am also not satisfied that there are reasonable grounds to believe that the child has been abused. In these circumstances I am satisfied that the presumption of equal shared parental responsibility does apply.
However, I am also satisfied, there being evidence that it would not be in the child’s best interests for the parties to share parental responsibility, that the presumption should be rebutted. The family consultant in her report said as follows:
77.Issues of culture and extended family are highly significant in this matter. Both parents present with long-winded narrations around issues they have experienced in relation to their problematic arranged marriage, financial issues and the entwinement of extended families. Both parents presentation suggests that even if it was deemed Mr Jagi poses no risk to X that the parents would have to take sides with their respective families and would be unable to develop any conciliatory and co-operative relationship. There is deeply engrained pain, shame, diminished sense of self-esteem, reduced self-efficacy to move on in the world, loss and grief associated not only with their failed marriage, but how each views the other in terms of their capacity to be a good husband, or, wife, or, mother, or, father. These issues seem deeply entrenched in the parties narratives and expectations relation to each other and their extended families. It the writers assertion the parties would struggle to separate themselves from these deeply entrenched cultural issues and their extended families. There are also overt and covert power dynamics, which seem to be at play in this family. Overt, in terms of the patriarchal structure whereby Ms Gaba is expected to acquiescence to Mr Jagi and covert, in terms of the couples dynamic where Ms Gaba experiences Mr Jagi as withholding affection, sex, behaving one way in public and the other in private and Mr Jagi regarding Ms Gaba as dominant in nature wanting her own way. Ms Gaba is unlikely to develop a sense of surety of X’s safety with Mr Jagi even if he is deemed to pose no risk to her because of these issues, Mr Jagi is unlikely to develop trust, and report satisfaction with Ms Gaba’s parenting of X.
78.In addition to the above noted dynamics and issues are those within the intimate sphere of Ms Gaba and Mr Jagi’s relationship. Whilst Mr Jagi presents as reporting he loves Ms Gaba and wants her back, he is conversely critical of her. There are contradictions in terms of the parties separation and Mr Jagi presents as Ms J assesses as wanting to portray himself in a good light and his adjustment difficulties seem to be intertwined with Ms Gaba moving interstate and the loss of his family. Whether this is because of a longing to re-develop his relationship with Ms Gaba or a sense of shame in relation to his current social standing and a need to save face or to endure he appear in the right is unclear. It never the less seems to be a contributing factor to the ongoing litigations.
...
81.Despite any veracity to the allegations, it is the writer’s assessment that even if the Court determines there is a low risk to X it is the family discord, conflict and the complexity within the parent’s presentations and relationship that will continue to pose risk of harm to X.
In her report Ms B said as follows:
27.X’s parents impressed as having very firm views about what is in X’s best interest. Each of them impressed as having limited capacity to engage in a collaborative parental relationship that would support X to have a safe relationship with her father. Ms Gaba and Mr Jagi continued to hold a view that the Court was better placed to make both minor decisions for X (whether supervised counselling sessions commenced) as well as major decisions for her (whether she should relocate to live with her father).
28.The capacity to address the ongoing conflict in the parental relationship, whilst not the primary focus of the counselling, was identified as a future challenge for further counselling…
These observations of the father and the mother were consistent with my observations of them when they were giving their evidence. In fact as submitted by the ICL the father conceded in re-examination that there had been no direct communication between him and the mother since April 2018. There is no evidence before me to suggest that this has changed. The views expressed by the mother in her submissions suggest, to the contrary, that nothing has changed. Although there are positive signs I do not accept as submitted by the father that the Court can be satisfied that the father and mother have been able to put aside “their entrenched and highly emotive conflict” as demonstrated by them attending upon Ms B and the child’s reintroduction to the father. Although, absent any further applications being made or evidence being adduced to the contrary, it is reasonable to infer that the child’s relationship with the father has progressed. I am not satisfied that I can on that basis infer as submitted by the father, absent any evidence to that effect, that either the father or the mother have developed sufficient insight to enable them to consult and make decisions that will be in the child’s best interests. To the contrary I am concerned, notwithstanding that the decisions they need to make may be limited in nature, that given their fixed views and the entrenched conflict, any attempt by the father and mother to share parental responsibility could undermine the progress that has been made in relation to the child’s relationship with the father.
I am satisfied that in all of the circumstances of this case it is neither practical nor in the child’s best interests for the father and mother to have equal shared parental responsibility and I propose to accede to the mother’s application albeit I propose to require the mother to obtain the father’s views, except in the case of an emergency, before making her decision and to notify the father of her decision once it is made. The ICL proposed that the mother be required to notify the father no later than 72 hours after making her decision. It is not clear from the ICL’s submissions why she has proposed the 72 hour time limit and I can see no reason why the mother should not notify the father as soon as practicable and not more than 24 hours after having made her decision.
This other issues the Court must determine is how much time the child should spend with the father and whether the orders it makes should be interim or final orders. In circumstances where I have found that it is not in the child’s best interests for the father and mother to have equal shared parental responsibility the Court is not required to consider whether it is in the child’s best interests and reasonably practical for the child to spend either equal or substantial time with the father. The mother submitted that if the child was happy her time with the father should be increased to two days per fortnight and four days in a fortnight during the school holidays. As orders have already been made for overnight time I am assuming that the mother is referring to overnight time. The father’s case is that the child’s time with him should be gradually increased over a period to five nights per fortnight and half of the school holidays. The ICL submitted that the child’s time with the father be gradually increased to four nights per fortnight and by 2022 half of the school term holidays and on a week about basis during the long summer holidays commencing 2021/2022.
Counsel for the ICL submitted that “in circumstances where the parties’ are incapable of and refuse to communicate, least of all in a civil fashion, a proposed 5:9 arrangement is bound to cause difficulties between the parties and for X juggling her parents’ personalities and anxieties about the other.” I have some difficulty with this submission in circumstances where the ICL is proposing four nights per fortnight. There not appearing to be any evidentiary basis as to why four nights per fortnight would be acceptable and five nights would not. And, in so far as it is submitted that the mother’s anxieties with respect to the father cannot be downplayed there is no evidence based upon which the Court could conclude that the mother’s parenting capacity would be diminished by the child spending additional time with the father and no evidence to suggest that the mother has not coped with the child spending unsupervised and overnight time with the father or that she would not cope if the time were to be further increased.
Similarly although I accept that the father has demonstrated a significant commitment to his relationship with the child, including relocating to Melbourne to be nearer the child, and that as observed by Ms B there appeared to be “the developing underpinnings of a warm and secure engagement for X with her father” these are not matters which are determinative in terms of whether the child should be spending four rather than five nights with the father. To the contrary it suggests that the child will have a meaningful relationship with the father irrespective of whether she spends four or five nights per fortnight with him.
During their interviews with the family consultant the child was described by the father as ‘timid’ and by the mother as ‘reserved’. The family consultant described her in the following terms:
Her presentation at interview was similar, she was difficult to engage, she was timid, shy and engaged in detailed art works but did not interact with social ease. Ms Gaba reports X is under stress in relation to contact with her father and she is bedwetting. Subpoena information corroborates X is been treated for bedwetting issues. Whether X’s overall presentation, or, issues of bedwetting is due to any developmental issues, or, simply a feature of her personality, or, a feature of a gifted child, or, that of coaching to not engage with the writer, or, any underlying trauma, or, other issues is unclear and difficult to fully assess in the context of this assessment. Further psychological and or developmental assessment of X may be required to better understand this presentation. To note her presentation of timidness, shyness and difficulties with social engagement do not seem to be a feature just in relation to this assessment, but is consistent of other reports and in other environments.
The family consultant referred in her report to the child having been referred to the Paediatric department at Q Hospital in March 2018, the referral noting bedwetting and “domestic stress” and that the child needed psychological assessment and therapy. She was referred to P Hospital for similar issues in May 2019. In her submissions the mother said that an appointment had been made for the child to be assessed by a paediatrician on 22 December 2020. In circumstances where neither the mother nor father have raised any concerns or sought to adduce any evidence based upon this most recent assessment it is reasonable to infer that there were no significant issues raised in that assessment beyond those previously referred to or that whatever issues there may have been are not relevant to the matters I must determine.
However even if that is the case I accept Ms B’s description of the child as having “a fragile social development” and am satisfied that she is a vulnerable child and as recommended by Ms B needs “the confidence and stability she has developed in her current school and home environment” to be supported. I am also satisfied that the child needs to be protected from her parents’ conflict to the extent that is possible. One way of providing that protection is for changeovers to take place at the child’s school. The ICL proposed that the child spend time with the father from the conclusion of school on Friday until 5.00pm on Sunday each alternate week for the first two terms of the 2021 school year extending to Monday morning in Term 3. However in circumstances where the child has been spending unsupervised overnight time with the father since late 2020, I am satisfied that the time can be increased more quickly than proposed by the ICL. This will have the added benefit of allowing changeover to occur without the father and mother having to be involved.
The ICL also proposed that the child spend time with the father every second week from after school on Wednesday until the commencement of school on Thursday. The father’s case was that after a period of 12 months that time be extended to the commencement of school on Friday, making it five nights per fortnight. I accept that it is important for the child that her time with the father is not limited to weekend time however, I am also mindful of this child’s need for stability. On that basis I am satisfied that the child should spend one night each fortnight with the father during the school week not two as he proposed and that this allow the father to have involvement in this aspect of her life. As it is to be only one night in my view Thursday is a better option in circumstances where the child is to be spending time with the father each alternate weekend. If the parties are of the view that another night is more suitable they can of course by agreement change the night.
The father also sought an order that the mother facilitate the child having telephone or Skype communication with the father each day from 6.00pm to 6.30pm. In my view this would be onerous for the mother and given the child’s personality and needs particularly onerous and disruptive for the child. Pursuant to the interim orders the child is able to communicate with the father each Tuesday and Thursday. The ICL proposed that the child communicate with the father during term time on the Sunday of the weekend when she is not in her father’s care and during school holidays on the Wednesday of the week when she is not with the father. Although this proposal recognises that the child will be spending time with the father each alternate Wednesday however in my view the child should be able to communicate with the father on the Sunday of each weekend that she is not in the father’s care and on the Wednesday when she is not in his care. This will mean that the child will have regular communication with the father when she is not in his care. When the child is not with the father during school holidays she should be able to communicate with him on Sunday and Wednesday. The hours proposed by the father and the ICL were the same and are the same as the times previously ordered.
I am also satisfied that the child should be spending time with the father during school holidays and propose to make orders that the child spend 5 days with the father during the first half of the term 3 school holidays with the father. I am satisfied that this should not be difficult for the child in circumstances where she will, by the commencement of those school holidays, be spending from Friday night to Monday morning each alternate weekend with the father. What this also means however is that by the time the 2021/2022 summer holidays commence the child will have spent a more extended period with the father on only one occasion. On that basis I am satisfied I should adopt the proposal of the ICL that the child spend week and week about with the father and mother during the 2021/2022 summer holidays. However, I also see no reason why the child, who will by that time be 11 years of age, should not spend half of the 2022/2023 summer holidays and half of the summer holidays thereafter with the father and the mother.
Neither the mother nor the ICL made submissions with respect to changeover. The father proposed that changeover be at school on school days and otherwise E Shopping Centre McDonalds in Suburb G. In circumstances where most changeovers will take place at school I am satisfied that I should make orders in the terms proposed by the father.
Both the father and the ICL proposed orders with respect to the child spending time with each of the parents on special occasions, the father being permitted to attend school and extracurricular activities, the parties keeping each other informed of their respective residential addresses and being restrained from denigrating each other, discussing the proceedings with the child and that neither parent physically discipline the child. Neither of the parties or the ICL addressed these issues in detail however the order proposed by the father are similar to the orders proposed by the ICL save and except that the father proposed that the child spend time with him on his birthday as well as her birthday. I have adopted some but not all of these proposals. Although the ICL proposed that the child spend time with each of the father and mother on Christmas Day. In circumstances where the child will be spending the first and second half of the summer holidays with the father on an alternating basis she will also be spending Christmas day with him on an alternating basis. On this basis I do not propose to make orders for Christmas Day. I do however propose to make an order with respect to the child’s birthday notwithstanding that this was not proposed by the ICL but not for the father’s birthday. If the father’s birthday falls on a day when the child is not in his care he can celebrate the occasion with her when she is next in his care.
Although both father and the ICL proposed an order restraining the parties from using physical discipline is required I am not satisfied that the evidence supports the need for that order.
The father also sought orders with respect to the parties continued attendance upon Ms B. It is not possible for me to determine whether this is necessary and in any event in circumstances where the parties have agreed until now to attend upon Ms B I am not satisfied that such an order is required. I also do not propose to make an order requiring the child to be treated by Dr C for all medical attention requiring a paediatrician. In my view this places too many constraints upon the mother’s ability to make decisions with respect to the child’s health. The mother is required to consult with the father before making any long term decision and notify him of any medical emergency, illness or injury and authorise any treating health professional to communicate with the father. In my view this sufficiently protects the child’s welfare.
It is then a question of whether these orders should be made on an interim or final basis. As previously referred to I am satisfied, in the absence of either party or the ICL seeking to have the matter relisted or seeking to adduce any evidence of there having been problems with the time the child has been spending with the father, that I can infer that her time with him has been a positive experience for her. The submissions filed by the mother which were in the form of an affidavit whilst referring to her concerns that the child may have been sexually abused by the father do not refer to any issues that have arisen during the child’s time with the father, other than the child’s bed wetting which I am satisfied is a long standing problem. In these circumstances the Court must weigh up the advantages of making final orders against the need for there to be further monitoring and assessment. These parties separated in 2016 and have been involved in proceedings in the Federal Circuit Court and this Court since early 2017. I am satisfied on the evidence that the child is aware of the parent’s conflict and the litigation and the conflict puts the child’s welfare at risk. There is also some force in the father’s submission, having regard to the mother’s submission with respect to her ongoing concern that the child has been sexually abused by the father, that interim orders would be likely to invite the mother to engage in further litigation. In these circumstances I am satisfied that the child’s best interests will be served by the Court making final orders.
Finally the father sought an order that the child’s name be placed on the Airport Watch List until she turns 18. The father relies upon the evidence with respect to the mother relocating to Melbourne without his knowledge or consent, that both the mother and the child hold Country H passports, that the mother has family in Country H and that Country H is not a signatory to the Hague Convention. Although the father concedes that the child might benefit from the experience of overseas travel it is his case that the risk of the mother not returning the child to Australia outweighs those benefits. In my view if an order is made restraining the removal of the child from the Commonwealth of Australia it should be directed to both parties. And, although I am satisfied that the child should be placed on the Airport Watch List I am not satisfied that her name should remain on that list until she turns 18. I am hopeful that with the end of these proceedings and in circumstances where the child is spending regular time with the father that the parties will be able to focus on the best interests of the child including the opportunity for her to travel overseas if the opportunity arises. In these circumstances I propose to make an order which last for three years.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Macmillan. Associate:
Dated: 29 June 2021
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