Jamal and Akbar
[2017] FamCA 586
•11 August 2017
FAMILY COURT OF AUSTRALIA
| JAMAL & AKBAR | [2017] FamCA 586 |
| FAMILY LAW – CHILDREN – With whom child lives – With whom child spends time – Parental responsibility – Best interests of the child – Where mother has belief that child sexually abused by the father however a finding of sexual abuse is unable to be sustained on the evidence – Where allegations by mother of history of family violence – Where issues as to father’s mental health - Where father has not spent time with the child for a lengthy period of time –– Concerns in relation to the maternal grandmother – Where need for therapeutic intervention to be put in place - Where it is in the child’s best interests that time with the father commence supervised and progress to unsupervised |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA |
| Goode & Goode [2006] FamCA 1346 Tethys & Tethys [2014] FamCAFC 125 |
| APPLICANT: | Mr Jamal |
| RESPONDENT: | Ms Akbar |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Christaki |
| FILE NUMBER: | PAC | 3863 | of | 2013 |
| DATE DELIVERED: | 11 August 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 30 November 2016, 1 December 2016, 24, 25 and 29 May 2017 and 16 June 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Beck |
| SOLICITOR FOR THE APPLICANT: | N A Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Breeze |
| SOLICITOR FOR THE RESPONDENT: | Gonzalez & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Berry |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Christaki of Legal Aid NSW Suburb F Family Law |
Orders
That all previous parenting orders in relation to the child B born … 2008 be discharged.
That the mother and father have equal shared parental responsibility for the child.
That the child live with the mother.
That the child spend time with the father as follows:
(a)for a period of 12 months from the date of commencement of therapeutic intervention with Dr C at such times and locations as recommended and directed by Dr C with such time to be in her presence and in the presence of such other persons at her discretion;
(b)that thereafter the child spend time with the father for a period of not less than two hours or such longer period at times that the parties shall agree in writing and on a day to be agreed and in default of agreement in writing each alternate Sunday from 12.00 noon to 2.00 pm for a period of six months supervised by Ms D and should Ms D be unavailable to supervise contact on occasions then N Contact Service or such other supervising organisation as may be agreed between the mother and father in writing;
(c)that thereafter the child spend time with the father for a period of not less than four hours at times and on a day to be agreed and in default of agreement each alternate Sunday from 12.00 noon to 4.00 pm for a period of six months supervised by Ms D and should Ms D be unavailable to supervise contact on occasions then N Contact Service or such other supervising organisation as may be agreed between the mother and father in writing;
(d)that thereafter the child spend time with the father for a period of not less than four hours at times and on a day to be agreed and in default of agreement from 12.00 noon to 4.00 pm each alternate Sunday for a period of six months such time to occur in a public place and to be unsupervised;
(e)that thereafter the child spend time with the father for a period of not less than eight hours at times and on a day to be agreed and in default of agreement from 9.00 am to 5.00 pm each alternate Sunday;
(f)otherwise, for such other periods or times as may be agreed between the parties in writing.
That the parties within seven days shall contact and do all things and sign all documents necessary as are required by N Contact Service or any other agreed registered supervising agency for the purposes of providing supervision as necessary and provided for in orders above, and
(a)That the parties shall pay equally half the costs, including any cancellation or transport costs of N Contact Service or any other agreed registered supervising agency for the purposes of providing supervision as necessary and provided for in orders above;
(b)That the parties comply with all rules, regulations, requirements and directions of N Contact Service or any other agreed registered supervising agency.
That for the purposes of changeover provided for in Order (4) (a), (b) and (c) above the mother or her nominee shall deliver the child to a location as agreed between the parties in writing or as directed by Dr C, N Contact Service or other agreed registered supervising agency or Ms D at the commencement of the time the child is to spend with the father in accordance with these orders and the mother or her nominee shall collect the child from the same location at the conclusion of that time and that for the purposes of changeovers provided for in Order (4)(d), (e) and (f) the mother or her nominee shall deliver the child to the father and the father shall collect the child from the mother at E Park, Suburb F or such other place as may be agreed between the parties in writing at the commencement of each period the child is to spend with the father and the mother or her nominee shall collect the child from the father at the same location or such other location as may be agreed upon between the parties in writing at the conclusion of such period.
That in the event that the mother is unable to comply with changeovers provided for in Order (4)(a), (b) and (c) then she shall as soon as practicable and at her cost make appropriate arrangements for the transport of the child to or from spending time with the father with Ms D, N Contact Service or other agreed registered supervising agency.
That in the event that the child is not available to spend time with the father in accordance with these orders due to illness, the mother shall:
(a)notify the father as soon as practicable that the child is unable to attend to spend time with the father; and
(b)within 24 hours of the time that the child was to commence time with the father provide to the father a medical certificate from a registered medical practitioner indicating the nature of the child’s illness and including confirmation that in that medical practitioner’s opinion the child was medically unfit to attend to spend time with the father provided for by these orders; and
(c)make the child available to spend make‑up time with the father, for an equivalent amount of time to that which was missed within the next four weeks with such time to be organised with Dr C, Ms D, N Contact Service, other agreed registered supervising agency or the father as applicable.
That in the event that the mother takes the child on a holiday or trip for any purpose during the time the child is otherwise meant to be spending time with the father, then the mother shall make the child available to spend make‑up time with the father for an equivalent amount of time to that which is being missed within the next four weeks with such time to be organised with Dr C, Ms D, N Contact Service, other agreed registered supervising agency or the father as applicable.
That when the child is to spend unsupervised time with the father provided for in Order (4)(d), (e) and (f) then for the purposes of make‑up time provided for in Order (8)(c) the mother shall nominate in writing to the father three periods of make‑up time within seven days of the conclusion of the time missed and the father shall choose one of those periods in writing within a further seven days.
That the mother and father shall keep the other informed at all times of their residential address, landline and mobile contact telephone numbers and provide notice of any change in writing within 48 hours of such change provided that the parties shall use the landline and or mobile phone for the purpose of implementing these orders and as to the care and welfare of the child only.
That the mother and father shall keep each other informed of the names and addresses of any carers and/or third parties that from time to time may care for the child including treating medical or other health practitioners that treat the child and authorise that practitioner to provide to the other parent information they are lawfully able to provide about the child.
That the mother and father shall inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child and this order is sufficient authorisation for any treating medical practitioner to release the child’s medical information to the mother and/or father.
That the mother and father shall inform the other of any medical emergency which requires the child’s attendance at a doctor or medical facility when the child is in their care as soon as practicable or otherwise within 24 hours of such event and this order is sufficient authorisation for any treating medical practitioner to release the child’s medical information to the mother and/or the father.
That the mother and father authorise by this order the schools attended by the child from time to time to give each parent information about the child’s educational progress, medical emergencies and other school related activities and supply them with copies of all circulars, newsletters, letters, notices and documents, school reports, photographs, certificates and awards obtained by the child at the cost of the requesting parent.
That the mother and father shall be at liberty to attend or visit the school attended by the child from time to time for events, activities or functions which are routinely attended by parents.
That the mother and father shall be at liberty to attend all sporting and extra-curricular activities in which the child is involved which are routinely attended by parents.
That the child shall continue to attend upon Dr C for the purpose of therapeutic counselling as she directs and both the mother and father shall facilitate the child’s attendance upon Dr C as directed by her.
That the mother and father shall attend upon Dr C as she directs for the purpose of therapeutic counselling and in discussing appropriate strategies in both households to address the level of conflict between the parents and/or other family members and both parents shall comply with all reasonable requests of and referrals by Dr C in relation to themselves and as to the child.
That the mother and the father and the Independent Children’s Lawyer are permitted to provide a copy of the Family Report of Dr G and a copy of these orders to any of their or the child’s treating mental health and allied professionals and counsellors.
That the mother and father are restrained from denigrating the other directly or in the presence of the child or allowing any third party to do so whilst the child is in their care.
That the mother and father are restrained from physically disciplining the child or allowing any third party to physically discipline the child whilst the child is in their care.
That the mother and father are restrained from discussing any issues regarding sexual abuse allegations or regarding conflict and disagreement between the parties in these proceedings or any other proceedings with the child unless as otherwise recommended by Dr C.
That the mother and the father do all acts and things necessary to prevent and stop any other person or persons from raising or discussing issues in the child’s presence regarding the sexual abuse allegations and/or regarding conflict or disagreements between the parties in these proceedings or any other proceedings save and except as recommended by Dr C or for the purpose of investigations being conducted by JIRT or the Department of Family and Community Services.
That if the child makes further disclosures about sexual intrusion or other concerning behaviour, the parent to whom disclosure is made shall do the following acts and things:
(a)show concern;
(b)deal with the immediate circumstance;
(c)advise Dr C as soon as practicable;
(d)refrain from either reaffirming or dismissing the disclosure or questioning the child or seeking collaboration about the said disclosure;
(e)as soon as circumstances permit and in the absence of the child make a note of exactly what the child said or did.
That the mother and father are to do all things necessary to authorise Dr C and the parties and the child’s treating mental health, allied professionals and counsellors to be able to exchange information in relation to the parties and the child in pursuit of assisting each in the roles they must fulfil in relation to the parents and the child in this matter.
That the father shall continue to attend all appointments with and follow all advice of:
(a)Dr H or such other psychologist as his general practitioner may refer him to;
(b)Dr J or such other psychiatrist as his general practitioner may refer him to;
(c)including following all recommendations as to medication and treatment and including the filling of all prescriptions for prescribed medications at his own expense.
That the mother shall do all things necessary to make the child available to have these orders explained to the child by the Independent Children’s Lawyer and by Dr C at such time and place as arranged by the Independent Children’s Lawyer in consultation with Dr C.
That for the purposes of these orders where notice in writing or advice in writing is to be provided such writing shall include SMS or email communication.
That, otherwise, all applications before the Court be dismissed.
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 Jamal & Akbar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3863 of 2013
| Mr Jamal |
Applicant
And
| Ms Akbar |
Respondent
REASONS FOR JUDGMENT
The child, B, who was born in 2008, has been enmeshed in conflict between her parents and ongoing litigation in relation to her parenting arrangements since proceedings commenced in May 2014.
The matter for determination is the final parenting orders to be made in her best interests in circumstances where her relationship with her father is significantly disrupted.
Context
The applicant father, now aged 52, was born in Country K.
The respondent mother, now aged 31, was born in Country L.
The parties commenced cohabitation in October 2007 and were married in 2007.
The parties separated on a final basis in about March 2011.
The child is the only child of their relationship.
The father commenced proceedings in the Federal Circuit Court of Australia by Application filed 20 May 2014.
In an amended Application filed 11 November 2014 he sought final orders as to parenting that in summary provided:
a)that the father have sole parental responsibility for the child;
b)that the child live with the father.
The mother filed a Response to the father’s Application on 25 June 2014 seeking orders that in summary relevantly provided:
a)that the mother have sole parental responsibility for the child;
b)that the child live with the mother;
c)that the child spend time with the father as agreed between the parties.
On 3 June 2014 proceedings were transferred to this Court. The transfer was dealt with by a Registrar of this Court on the same day and an order was made for the appointment of an Independent Children’s Lawyer to represent the interests of the child.
On 3 June 2014 transfer orders were made pending further order and until 10.00 am on the day of the matter being listed before a judge of this Court that:
a)the mother is to ensure that the child is not left alone in the presence of the maternal grandmother;
b)the mother is to ensure that no person physically or corporally disciplines the child;
c)the mother is restrained from causing or permitting physical or corporal discipline to the child.
It appears that the above orders expired upon the matter’s first listing before a judge of this Court on 17 November 2014 when other orders were made by consent.
On 17 November 2014 the parties reached an interim agreement in relation to the child’s circumstances and interim orders were made in the following terms:
(1)The child [B] born … 2008 live with Mother.
(2)the child spend time with the Father under supervision at the [M] Contact Service (“[MCS]”) on one day each week and to facilitate such time;
(a)Each party must, if not already done so:
a)Contact [MCS] within 24 hours to arrange an appointment for assessment for suitability;
b)Attend the assessment;
c)Comply with any appointment made by [MCS];
d)Comply with all reasonable rules of [MCS];
e)Comply with all reasonable requests or directions of the staff of [MCS];
f)If [MCS] following its intake procedure is unable or unwilling to provide supervision as set out above then either party shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court;
(b)If the parties are accepted by [MCS] following intake procedure then the father is to spend time with the child each Saturday at times nominated by [MCS] and such time is to be implemented by the Mother delivering the child to [MCS] at the start of the Father’s time with the child and collecting the child from the same place at the end of the Father’s time;
(c)In the event that [MCS] is only able to/prepared to offer supervised time at times that differ from the Saturday proposed above, then the time under supervision shall occur at the times which can be provided by [MCS];
(d)The parties shall each pay the fees nominated by [MCS] for the provision of its service.
(3)That each parent is restrained from:
(a)Making any critical or negative remark about the other parent and/or member of the other parent’s family, to the child or in the presence or hearing of the child;
(b)Discussing with the child or in the presence or hearing of the child, these court proceedings and any issue in dispute between the parties including the allegations made in these proceedings;
(c)Speaking to the child and/or questioning the child regarding the alleged sexual abuse;
(d)Using physical force upon the child when disciplining her.
(4)That the Mother and Father shall do all acts and things reasonably necessary to ensure that no member of his/her family:
(a)Make any critical or negative remark about the other parent and/or member of the other parent’s family, to the child or in the presence or hearing of the child;
(b)Discuss with the child or in the presence or hearing of the child, these court proceedings and any issue in dispute between the parties including the allegations made in these proceedings;
(c)Speak to the child and/or questioning the child regarding the alleged sexual abuse;
(d)Use physical force upon the child when disciplining her.
(5)That for the purposes of communicating information between the parties the Mother and the Father shall:
(a)Communicate by telephone matters of an urgent nature and otherwise;
(b)Communicate by text messages.
(6)That within seven (7) days of the date of the making of these Orders, the Mother and the Father via their solicitors, each is to inform the Independent Children’s Lawyer in writing the following:
(a)Contact details of any general practitioners, medical practices, medical centres or hospitals attended by him/her over the last five (5) years; AND
(b)Names and contact details of any counsellor, therapist, psychologist or psychiatrist s/he may have attended over the last five (5) years.
(7)That without prejudice the Father be and hereby is restrained from attending the child’s current school and any future school at which she is enrolled, save for contact/meeting with the child’s teacher or other school staff in relation to the child and on such occasions the Father shall not approach or contact the child and the Mother has leave to provide a copy of these orders to the child’s school.
(8)That the Father be and hereby is authorised to obtain directly from any school at which the child is enrolled a copy of the child’s school reports, and all newsletters and notices ordinarily sent to parents by that school.
(9)That the Mother authorises any school the child may attend to provide directly to the Father at his cost all reports, newsletters or notices usually received by parents from the school AND THAT for the purpose of this authorisation this order shall be deemed to be such authorisation to the school/s.
(10)The Mother is to inform the Father and to keep him informed regarding any school the child may attend; and to advise him in writing within seven (7) days of any change of the child’s school including the name, address and telephone contact details of the child’s new school.
(11)That the Mother notify the Father as soon as practicable if the child suffers any illness or injury requiring hospital admission, including the hospital’s location and telephone number, and authorise the hospital to provide information to the Father as to the child’s condition and treatment.
(12)The Father attend and continue to attend upon his psychologist, [Dr H] for assistance in relation to the ongoing management of his mental health, until assessed otherwise by his psychologist and/ or his GP, including:
(a)Complying with any appointment times made.
(b)Complying with treatments/recommendations including referrals to any other professional and complementary services.
(c)Taking medications prescribed, if any, for treatment/management of his mental health.
(13)The Father shall within 48 hours provide the Independent Children’s Lawyer (ICL) with his authority, authorising his psychologist referred to in Order 12 to speak with and provide the ICL with information regarding the management of the Father’s mental health.
(14)Pending the availability of [MCS], the child shall spend time with the Father supervised by a supervisor of [N Contact Service] for two (2) hours on each Saturday from 12pm to 2pm.
(15)For the purpose of Order 14, each party must:
(a)Contact [N Contact Service] on … within 24 hours to arrange an appoint for assessment for suitability;
(b)Complete the assessment;
(c)Comply with all reasonable rules of [N Contact Service];
(d)Comply with all reasonable requests or directions of the staff of [N Contact Service].
(16)The Father shall be solely responsible for paying [N Contact Service] for the provision of supervised contact service.
(17)For the purpose of Order 14:
(a)Changeover shall be at [E Park, Suburb F];
(b)the child’s supervised time with the Father shall be at [E Park, Suburb F] and/or [Suburb F] Shopping Centre.
(18)For the purpose of the child’s time with the Father, whether such time is supervised by [MCS] or [N Contact Service], the Father is and be restrained from:
(a)Speaking to the child in any other language other than English;
(b)Smoking in the child’s presence.
(19)For the first three (3) contact occasions referred to in Order 14, the Mother is permitted to be in the vicinity of [E] Park and/or [Suburb F] Shopping Centre but not within sight of the child.
BY CONSENT IT IS NOTED THAT:
A.The Father advised today that he has been and is currently attending upon Dr H, psychologist, for management of his mental health.
B.The Father has completed his Intake Assessment at the M Contact Service.
C.The Mother has not completed her Intake Assessment at the M Contact Service.
D.The Mother has as appointment at the M Contact Service on Wednesday 19 November 2014 for Intake Assessment.
On 3 March 2015 Dr G, clinical psychiatrist, was appointed for the purposes of providing an expert’s report to the Court. The report of Dr G was released to the parties on 22 October 2015 and the proceedings were referred to mediation.
On 16 May 2016 trial directions were made and subsequently proceedings were listed for hearing to commence 30 November 2016.
On 1 December 2016, the second day of the final hearing, the mother and father agreed to a pathway of therapeutic intervention in relation to the child’s relationship with the father. To facilitate that therapeutic intervention, proceedings were adjourned on a part-heard basis to 24 May 2017 allocating three days for trial. Orders were made in the following terms pending further order:
(1)THAT all previous parenting orders in relation to the child the [B] born … 2008, the child of the marriage be discharged.
(2)THAT the said child live with the mother.
(3)THAT the parties have equal joint parental responsibility for the said child.
(4)THAT for the purpose of communication relative to parental responsibility:
(i)The requesting party shall consult with the other party with regard to any such issue in writing and the responding party shall reply to the requesting party in writing, such consultation be by way of email or in cases of serious medical emergency by text message;
(ii)Each party will make a genuine effort to come to a joint decision about any such issue and neither party shall unreasonably withhold their consent;
(iii)If no agreement is reached between the parties or if no reply is received within 14 days after the initial request is made by the requesting party, or such longer time as may be agreed between the parties, then both parties shall take such steps and do all things necessary to attend upon a qualified family dispute resolution practitioner to mediate the issue in dispute.
(iv)In the event that either party fails or refuses to attend the said mediation then the other party shall be able to make the decision on the issue in dispute.
(5)THAT:
(a)Each of the parents shall attend upon [Dr C] at such times and at such places as she may direct for the purposes of individual joint and/or family therapy and shall ensure that any other person in their household attends as directed including but not limited to the maternal grandmother and each party shall share equally all associated costs of [Dr C] save and except for each party shall pay for interpreters as required by each of them or a member of their respective families;
(b)For the purpose of Order 5.a., that within 7 days of the making of these Orders each of the parents shall contact [Dr C] telephone, … to arrange the initial appointments.
(c)Both parties shall facilitate the child, the child [B] born …2008 upon [Dr C] including but not limited to encouraging the child to attend therapy at such times and at such places as she may direct for the purposes of individual and/or family therapy;
(d)Both parents are restrained from discouraging the therapy process and/or [Dr C] and permitting or allowing any other person to do so in the child’s presence and/or hearing.
(e)Each party shall comply with all requests, recommendations and referrals of [Dr C] including but not limited to, endeavouring to ensure their partners and/or the maternal grandmother participate in any therapy, on the days and times as directed by [Dr C].
(f)It is noted the therapy shall include the following:
(i)The parents, the child and any other person shall attend upon [Dr C] separately or together at the discretion and direction of [Dr C].
(ii)The parties agree that for the purpose of the therapy is to establish and commence contact between the father and the child and to that end therapy will include:
1)assisting the mother and the father to accept, facilitate and support the child’s reintroduction to the father;
2)improving co-parenting and communication between the parents;
3)helping the child in emotional regulation and in dealing with challenging family circumstances;
4)assisting the parents in responding to the child’s emotional needs and to collaboratively address her developmental needs;
5)assisting the resolution of the difficulties experienced in relation to the child’s relationships with her parents and effective behaviour management.
6)assisting the parents to work on re-establishing a relationship between the child and the father.
(iii)Therapy with the child shall also be focused on:
1)attending to her day to day wellbeing, including any worries, fears, questions or concerns she may express, and her emotional state including but not limited to any worries she may have about either parent and perceived loyalty, conflicts or burdens of parental expectations; and
2)to assist the child to adapt to her current circumstances in each household, and in relevant other contexts such as school.
(iv)The parties shall do all things to involve themselves in individual sessions or with the child as requested by [Dr C] including:
1)the parties providing input to [Dr C] about current observations and concerns about the child’s wellbeing as may be requested by her;
2)taking on board professional feedback and advice to each parent about how to best assist the child to deal with any challenges or disruptions to the child’s wellbeing;
3)[Dr C] shall assist the parent/s to discuss an issue with the child and /or impart information to the child and/or reassure the child about any issue and/or set boundaries as may be appropriate or beneficial to the child and parent/child relationship; and/or
4)Involving each parent’s partner and/or the maternal grandmother, as advised by [Dr C].
(v)It will not usually be expected or required for the parents to be seen together unless as requested by [Dr C].
(6)THAT [Dr C] be at liberty to communicate with [Dr G] in relation to the therapy.
(7)THAT Independent Children’s Lawyer be at liberty to provide copies of the Magellan report dated 23 July 2014, [Dr G’s] report dated 11 September 2015 and a copy of these orders to [Dr C].
(8)THAT the parties be granted leave to provide a copy of the Magellan report dated 23 July 2014 and [Dr G’s] report dated 11 September 2015 to any of their or the child’s treating mental health practitioners
(9)THAT notwithstanding any other orders and at the discretion and direction of [Dr C] the parties shall do all things to follow any recommendations for the child to spend time and communicate with the father and for that purpose [Dr C] shall confirm in writing those recommendations to both parents and the Independent Children’s Lawyer and outline how and when that time and communication is to be structured, to be implemented and how often it is to occur and how it is to continue and progress.
(10)THAT in the event that the child suffer any illness requiring medical attention or hospitalisation during any period the child is spending time with the father then he shall immediately notify the mother of such illness and the name of the medical practitioner or hospital to which the child has been taken.
(11)THAT the mother within 7 days:
(a)sign all documents and do all things necessary to:
(i)authorise the school at which the child may from time to time attend:
1)to furnish the father with copies of all school reports, notices and advices concerning:
(a)the said child; and
(b)any activity involving the said child;
and
2)to make available to the father copies of any school photographs of the said child at his expense.
(b)notify the father immediately of:
(i)any major illness suffered by the said child;
(ii)any hospitalisation of the said child;
and
(c)make available to the father copies of any medical report or reports that may be sent to her in connection with such illness or hospitalisation;
and
(d)Authorise:
(i)any hospital in which the said child may be admitted; and
(ii)any medical practitioner under whose care the said child may be;
to give such information to the father as he may request.
(12)THAT the father collect the said child from the mother at [E Park, Suburb F] or such other place as may be agreed between the parties at the commencement of each period the child is to spend with him and the mother collect the said child from the father at the same location or such other location as may be agreed upon between the parties at the conclusion of such period.
(13)THAT each party be restrained from:
(a)making any critical or negative remark about the other party and/or a member of the other party’s family to the child or in the presence or hearing of the child or causing or permitting any other person so to do;
(b)discussing with the child or in the presence or hearing of the child the court proceedings and any issue in dispute between the parties including the allegations made in these or any other proceedings or causing or permitting any other person so to do;
(c)speaking to or questioning the child regarding the alleged sexual abuse allegations or causing or permitting any other person so to do save and except for the purpose of therapy; and
(d)using physical force upon the child when disciplining her or causing or permitting any other person so to do.
(14)THAT the father attend and continue to attend upon Dr O for assistance in relation to the ongoing management of his mental health and to:
(a)comply with any appointment times made;
(b)comply with recommendations and treatments including referrals to any other professional and complimentary services;
(c)take all medications prescribed for treatment and management of his mental health.
(15)
(a)THAT both parties be restrained from removing and/or causing or allowing the said the child [B] born in 2008 to be removed from the Commonwealth of Australia.
(b)THAT 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 be 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.
(c)THAT the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to place the names of the said child on the Watch List, also known as the PACE Alert system, in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child's name on the said Watch List until further order of the Court.
(d)THAT the Australian Federal Police maintain an airport watch of the said child on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
(e)THAT the Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
The final hearing, which focused on the child’s relationship with the father resumed on 25 May 2017. The matter was adjourned part-heard on 29 May 2017. Judgment was reserved on 16 June 2017 following submissions.
Documents relied on
At trial the applicant father relied upon:
a)his trial affidavit filed 22 May 2017;
b)the affidavit of Ms D filed 21 November 2016;
c)the affidavit of Mr P filed 21 November 2016.
The mother relied upon her trial affidavit filed 12 May 2017.
The evidence
The mother complains that the father’s behaviour during their relationship was argumentative, abusive and aggressive. She complains that on one occasion he “shoved me against the wall” but for the most part he reacted quite violently during any arguments by smashing the walls of the home or breaking the furniture. It is clear that cultural issues led to conflict between the parties.
Following the parties separation in June 2011 interim orders were made by consent at the Local Court at Suburb F that provided in summary:
a)that the mother and father have equal shared parental responsibility for the child;
b)that the child live with the mother;
c)that the child spend time with the father each Monday Wednesday and Friday from 6.00 pm to 8.00 pm, each Sunday from 11.00 am to 7.00 pm and otherwise as agreed between the parties;
d)the parties were restrained from removing the child from the Commonwealth of Australia and an order placing the child on the airport watch list was made.
The mother says that the father was somewhat inconsistent in his attendances for time with the child as provided for in these orders.
Subsequent to separation the mother complains that the father remained aggressive, abusive and belittling of her. NSW Police have attended on occasions: Exh “H”.
The father makes complaint in relation to the maternal grandmother, who moved into their home in 2010, asserting that she interfered in his relationship with the mother, was controlling of the mother and physically abusive towards the child. The child’s medical notes (Exh “N”) at the Q Medical Centre reveal the child’s complaints of being struck by the maternal grandmother (7 April 2013, 28 October 2012, 13 May 2012 and 16 October 2011).
It is noted that on 3 June 2014 the Court ordered the mother to “ensure that the child is not left alone in the presence of the maternal grandmother” and that the mother ensure that no person physically or corporately discipline the child and that the mother be restrained from causing or permitting physical or corporal punishment to the child.
The father expresses significant concern as to the maternal grandmother’s ongoing physical abuse of the child with those concerns based on specific complaints made by the child to the father in 2012 and 2013 and the observation by the father of what appeared to be injuries on the child.
By October 2013 the mother was working casually through an agency. The child had been placed in day care for four days per week at R Day Care but otherwise she was provided minimal assistance by the maternal grandmother who had commenced her own child day care business in 2013.
The father’s concern about the maternal grandmother was such that it was raised with the mother in October 2013 in the context of the parties’ divorce proceedings. The mother sought legal advice thereafter in early December and prior to the child’s asserted complaint. The mother further asserts that she was contacted by the father’s solicitor before she sought her own legal advice about the maternal grandmother and the risk that she might lose care of the child (Transcript AVO hearing). The mother was, it appears, well aware of the allegations of violence perpetrated on the child by the maternal grandmother and that medical records might be produced in evidence.
The abuse allegations: 13 December 2013
On 13 December 2013 the mother asserts that the child made a complaint to her in the presence of the maternal grandmother that the father had abused her.
The child was returned by the father to the maternal grandmother after time with him. The maternal grandmother collected the child from the father outside the mother’s home and walked her inside where the mother was seated in the lounge room (Transcript AVO hearing). The maternal grandmother was thereafter in the presence of the mother and child at all relevant times and stayed overnight at the mother’s home. The maternal grandmother’s evidence would, in all the circumstances, appear to be crucial to the contentions asserted by the mother.
The child was home for about half an hour before she made the asserted complaint (Transcript AVO hearing).
The mother records (in her trial affidavit) the child’s complaint thus:
Whilst in the father’s care on 13 December 2013 the child had gone to the toilet. [The child] asserted that the father “opened the door with a knife” and while [the child] was washing herself “dad put his hands in my private part and started scratching me”. [The child] said that she started to put her pants on and the father pulled them down and told her to go to the bathroom and he opened my legs and scratched me more on my bum.
When pressed in her oral evidence the mother repeated that the child had used the words “scratched me” and that such words were what the child told her “exactly”.
The mother says that following the complaint she showered the child and applied Vaseline to the child’s vagina area that she observed to be “bright red like a tomato, and inflamed”.
The mother further asserts that that night she slept with the child who had nightmares and was speaking in her sleep saying “dad please stop, please stop”.
It might well be inferred that the child’s complaint to the mother could be regarded by anyone as a significant complaint of sexual abuse. However, in a completely inexplicable turn of events the mother made no complaint that day or the next day to anyone. She did not telephone the police or any other person as to the allegations made by the child. Indeed, she facilitated the child having her birthday party in the presence of friends, family and other children in circumstances where the child must have been significantly distressed particularly as the mother asserts that the child was still walking awkwardly.
On Sunday, 15 December 2013 the mother finally took a positive step. She attended upon the child’s general practitioner at the Suburb F Medical Centre primarily because of the child having an eye infection. Whilst there the mother raised with the practitioner the child’s complaint. The mother says that the child would not permit the doctor to examine her and she was told to report the matter to the police.
The medical centre notes reveal that the mother attended with the child on 15 December 2013 with the primary complaint being recorded as “conjunctivitis”. The mother reported to the medical practitioner that:
she does not want to go to stay with her dad. She told her mum that her dad puts fingers in her vagina area and also in her back – anal area and it hurts and sometimes can’t pass urine at times because of pain.
The mother’s complaint to the medical practitioner differs significantly from the words the mother asserts were used by the child. The mother specifically rejected the suggestion in oral evidence that she had seen the child urinate after the child had been returned home from time with the father. Yet the mother told Dr G, the single expert, that when the child “peed she saw blood”. When pressed as to the inconsistency the mother then asserted that she had seen blood but that she could not recall the date that she did and that any such assertion was not in her affidavit material.
The child’s reluctance to be examined was noted by the medical practitioner who also noted “mild redness and inflamed introitus and anal area”. The child was prescribed eye drops and antibacterial medication.
An examination of the child’s historical medical notes reveals a child who from time to time suffers from asthma, eczema and has some allergies.
The child attended upon the medical practitioner on a further six occasions in the period from December 2013 to April 2014 with no reference to any complaint in relation to the father. On 13 April 2014, four months later, the child presented with symptoms of “urinary frequency with burning”. The child was prescribed antibacterial medication.
Police intervention
On 15 December 2013 the mother attended at Suburb F Police Station after seeing the child’s doctor earlier that day. She had told the child they were going to the police with the child responding “I don’t want to, I’m too scared.” The mother told the police that she was aware that “this has been happening several times”. When questioned as to why she had not reported it to the police instead of continuing to make the child available to the father the mother responded that “she only suspected that this has occurred several times previously”.
The mother reported to the police that the child “does not want to go and stay with her dad as he put his fingers into her vaginal area and also into her back (anal area) and it hurts and sometimes she can’t pass urine because of the pain”. The police noted that the mother had taken the child to her medical practitioner and noted the medical practitioner’s observations being “not necessarily indicative of sexual interference and not an uncommon condition amongst children of that age”.
Suburb S Hospital
It was arranged for the child to attend Suburb S Hospital on Monday, 16 December 2013 for examination.
The mother gave to that staff member an initial history being “the child goes for access visits with her father. She returns with a “red vagina” and pain on passing urine. She starts scratching and says “mummy it is burning”. This started at the beginning of this year. On Friday she returned and had difficulty walking. She walked “like a woman who has given birth”.
The mother informed the staff specialist that the child was learning to wash herself in a cultural way after passing urine using a watering can, drying herself with tissue paper.
The child was interviewed by Dr T, the staff sexual assault specialist and the child disclosed to that practitioner “daddy was scratching her” and she pointed to her mons area. The child was asked “how did you get the sore” and the child replied “with a nail” the child was asked “who does the nail belong to” and the child said “dad”. The child was asked where did it happen to which she replied “at dad’s home”.
The staff specialist’s medical findings were as to a vertical split to the left of the clitoral hood and an abrasion to the child’s right labia minora and some anal observations that were indeterminate.
The child, having previously been prescribed salt baths, gentle careful drying and the use of Vaseline as a protective agent, was examined again some days later on 23 December 2013 by the staff specialist. On re-examination the specialist was informed that the child had in the last two days once again commenced complaining of pain on passing urine and was sometimes scratching herself in the genital region. The specialist recorded that the vertical split on the left of the clitoral hood was still visible, the abrasion to the right labia minora was partly or fully healed but there were new superficial scratches on both labia minora. A steroidal cream was prescribed to reduce inflammation and scratching. The staff specialist concluded that it was not possible to determine on examination whether scratches or other injuries to the genitals had been inflicted by the child scratching herself or by some other person scratching or injuring the child.
In summary the staff specialist reported Exh “H”:
On examination this child has eczematous changes in the vulva region. This child gave a history of being hurt by her father in the genital area. This may account for some or all of the abnormality seen by me on examination on 16 December 2013 and in particular for the deeper abrasion to the left of the clitoral cord. There are also other possibilities relating to the child scratching herself and inflammation caused by over washing. It is not possible to determine with certainty the cause of the injuries from medical examination alone… It is possible that all the abnormal genital findings were caused by genital skin irritation and that as a result of the child scratching herself over a period of some days or weeks prior to my initial examination.
The mother made a formal statement to the police on 17 December 2013. In that statement the mother states that when the child was returned to her home:
As soon as she entered the house, she would not remove her hands from her private part.
I asked her, “Do you want to go to the toilet?”
She said “Mummy yes, but it’s burning.” She was walking in an awkward walk, like a new born baby.
She went inside the bathroom. She was crying and screaming while she was passing urine.
I asked, “Why are you crying?”
She said: “Mummy it is burning and it is hurting me, inside is hurting me.”
I tried to take a bucket of water and rinse her private part, while she was trying to pass urine. It was really red, it looked like a newborn baby when they have rashes, and scratches. I tried to give her a bath but she was refusing. She could not get into the bath on her own, me and my Mum had to lift her into the bath. As soon as I turned the water on she started screaming. I just dried her and put on her clothes.
The child was presented to the Joint Investigation Response Team at the Suburb F JIRT office on 17 December 2013 for the purposes of an audio/visual statement.
The child’s initial complaint is recorded as:
my dad scratched my bum, he tied my hands then he said that I’m gunna scratch your bum. I said stop it and he said I don’t care. He was changing my clothes when he was scratching my front bum and my back bum.
It is noted that the child at the time of these interviews was just short of five years of age. During the audio/visual interview the child stated that while at her father’s house her father “took her pants off and scratched her bum”. When questioned regarding this, the child disclosed her “bum” is her vagina. Further to this the child stated that her father scratched her bum using his fingernails. The child said to her father “stop it” to which he replied “I don’t care”. The child was asked where it happened and she stated “in the bedroom” at “dad’s house” she further disclosed that “he goes with me in the toilet and scratches me”. The child was asked who she told about this and she initially said no-one. When further questioned she advised that she told her mother and her grandmother. The child advised that she did not want to go back to her father’s house or see her father.
In commentary in relation to the interview JIRT noted that the child had difficulties particularising any one incident. The child defined the location that the incident occurred to be at her father’s house but also advised that the “scratching” occurred in the bath tub, on the toilet, and while getting dressed in her father’s bedroom. The child could not particularise each incident but referred to them as a whole and switched between each incident. The child was unable to define what time of the day the incident occurred and/or the date/day of the incident occurred.
The interview with the child reveals the child reporting variously being in the lounge room, the father locking his bedroom door, the child locking that door, the door being unlocked by the father with the key, the child’s hands being tied behind her back by the father with a white rope, the child trying to break free but the rope being too tight, the child recalling that she was wearing her school uniform and then correcting herself to be wearing her pyjamas, the father kicking the child in the leg, the child being “scratched” by the father in the bedroom, the father opening the bedroom door with the key and then hitting the child.
Concerningly, the child appears concerned about what the police might tell her mother “so she can take me to the cinema”. The child reported that the mother said to her: “if you don’t tell, I won’t take you to the cinema”. When questioned as to what she was supposed to tell the child said “the words that my dad told, he hit me, scratched me”. The child reiterated that she was told to say this by her mother and her grandmother.
The initial JIRT notification in relation to the child records the following allegations that were provided by the mother:
[The child] upon arrival home was holding her vagina or area and the mother questioned if she needed to go to the toilet. The child said “mummy yes, but it’s burning”. The child was questioned about what happened during the visit with (the father) to which she replied “I was in the bathroom, daddy unlocked the bathroom door with a spread knife. I said “it’s a rude” and daddy put his hand here (pointing to her vagina) and started scratching me. He put his finger inside me. I told him to stop any put both my hands behind my back and he said “if you don’t be quiet I’m going to scratch you even more”. He took me inside the bath and he said to me open my legs and his scratched in the even more also from my bum as well. I said “daddy, daddy you are hurting me” and he said “I don’t care”. I got out of the bath and started dressing. Daddy came and pulled down my pants and started scratching my bum after a while he stopped and I started dressing, but mummy its hurting.
The mother attempted to calm [the child] and applied Vaseline to the area…
The father was spoken to at Suburb F Police Station on 18 December 2013. The father became distressed and was taken to Suburb F Hospital and later released. Later on 8 January 2014 the father voluntarily attended Suburb F police station to participate in a lengthy interview. He denied any wrongdoing. Specifically, he denied that the child at any time that day used the toilet at his residence. The father provided a detailed account of what he did with the child during the short period that the child was with him on the evening of 13 December 2013 specifically refuting any suggestion that the child had occasion to use the bathroom whilst at his house.
Thereafter a provisional Apprehended Violence Order (AVO) was issued by the police that prevented the father from having contact with the child.
The AVO proceedings were heard by the presiding magistrate at Suburb F Local Court on 10 April 2014 and following evidence from the complainant mother the application was dismissed. In the AVO proceedings the court had evidence for the prosecution from the father’s flatmate, Mr P, who was home for the short time that the father was there with the child. His evidence was in direct conflict with that of the child and supportive of the father’s recounting of events that evening.
The father has not been charged with any criminal offence arising from the mother’s allegations.
In May 2017 the mother procured from the child’s medical practitioner a referral of the child to a psychologist Ms U of Suburb F.
The child’s subsequent attendances upon her general medical practitioner reveal issues as to asthma and itching.
The maternal grandmother
The maternal grandmother did not provide a statement to the investigating police notwithstanding the mother asserting that she was directly present at the time the child returned to the mother’s care and during the complaint and its aftermath at home that night.
In the context of these proceedings where the maternal grandmother is available she is not called in the mother’s case. If ever there was a witness of necessity to the mother’s case it is the child’s grandmother.
In Tethys & Tethys [2014] FamCAFC 125 the Full Court had occasion to consider the inference that may arise from the failure to call a witness. The Full Court said:
69. …It is submitted that the Trial Judge in error (sic) in law by essentially extending the principle in Jones and Dunkell (sic). This principle applies in circumstances where a party fails to call a witness in their case, an inference can be drawn that the evidence of such witness would not have assisted that party.
70. It is unnecessary to deal extensively with the authority of Jones v Dunkel (1959) 101 CLR 298 and the cases that follow it, however, we set out what was said in Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572, by Hodgson JA, with whom Beazley JA agreed:
15. In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular mater, and the extent to which they have in fact done so. As stated by Lord Mansfield in Blatch v Archer: “... [A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” See also Azzopardi v The Queen [2001] HCA 25; (2000) 75 ALJR 931 at 935 [10].
16. The case of Jones v Dunkel (1959) 101 CLR 298 is a particular application of this principle. That case itself related to a situation where there was evidence supporting an inference against a party, and that party did not give or call evidence, which that party was plainly in a position to have given or called, in order to explain or contradict the material presented. In my opinion, a similar principle applies where a person bearing the onus of proof does not call or give evidence which that person is plainly in a position to give or call; and unless some explanation is given of this failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case. cf Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389.
71. Further in Kuhl v Zurich Financial Services [2011] HCA 11; (2011) 243 CLR 361 at 384 Heydon, Crennan and Bell JJ said at [63] and following:
63. The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party’s case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue.....
64. The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party.....
There was no explanation for the maternal grandmother not being called, nor any evidence that she was otherwise unavailable to be called. As a consequence an affidavit by her was not read in the proceedings. Her evidence, presumably corroborative of the mother’s allegations would, where the mother has the onus in regard to her allegations as to the father, be crucial to the veracity or accuracy of the mother’s evidence. In the absence of the maternal grandmother being called in circumstances where she was clearly, if the mother is to be believed, closely involved in the events of 13 December 2013, the inference is that her evidence would not have assisted the mother.
N Contact Service and the Contact Centre time with the child
Following orders made on 17 November 2014 the child spent supervised time with the father at the M Contact centre (M centre) for two hours each Saturday that commenced in May 2015. This was the first occasion that the father had spent time with the child since December 2013.
Prior to the M centre becoming available for supervised time, orders of 17 November 2014 provided for interim arrangements with N Contact Service. The mother was dilatory in engaging with that organisation to the extent that the first occasion that the child was to have time with the father supervised by N Contact Service was not until 2 February 2015. On that day the child presented to the supervisor as “very distressed, clinging onto the mother and crying and repeating that she didn’t want to see her dad”. The supervisor noted that the mother “did little to encourage the child to see the father. The mother kept repeating to me “what can I do? She doesn’t want to see him””. The contact session did not take place.
A further contact session supervised by N Contact Service was arranged for 8 February 2015. Once again the child was distressed and clinging to the mother.
On 27 April 2015 the mother’s solicitor contacted the M centre advising that the child was resistant to spending time with the father. Time was arranged for 16 May 2015 for the first M visit with the M considering a referral of the child to the Anchor Program.
The mother was offered midweek time by the M centre but refused asserting that the orders said Saturdays. Time was arranged for 16 May 2015 in the morning and was refused by the mother who wanted afternoon visits.
The father recalls that his time with the child on 16 May 2015 was enjoyable and that the child appeared happy to be spending time with him. The father’s recollection is supported by the contact centre notes although the notes reveal reluctance on the part of the child while the mother remained present and the child’s reluctance to separate from the mother. It is noted that initially the child when asked if she would look at the father said “…I don’t want him coming near me I don’t want to get into trouble”.
Once the time progressed in the mother’s absence the child slowly warmed to the father. The father provided appropriate gifts for the child who initially responded warmly and then said “I want to take them home but I can’t…if I do Mummy will get angry”. The mother saw the gifts on collection of the child and was reported to “look angry”. After a whispered conversation with the mother the child said “I don’t want anything my daddy gave me ….”
The M centre notes record:
The Coordinator stated to the LWP (live with parent) that she needs to be more positive about contact. the child had had a very nice visit and when the LWP had got the angry look on her face the child’s demeanour changed.
Perhaps reflecting on her conduct on 16 May 2015 the mother attended at M centre and spoke to the coordinator and apologised for her facial expressions that day and said “I want my child to see her father. I lost my dad I know how important fathers are I just need her to be safe”.
Regrettably, this was the only occasion the that the child was to spend time with the father at the contact centre as on the next occasion the father was informed by the contact centre supervisor that time would not happen as the child presented distressed and unwilling to engage, refusing to get out of the mother’s car even when encouraged by the M centre senior supervisor and coordinator. The mother was reprimanded by the M centre staff for not preparing the child better for contact to which the mother responded “if she does not want to, I can’t make her”. The mother’s response is reflective of inappropriate empowerment of the then six-year-old child.
The Single Expert Report
The single expert report was provided by Dr G, Child and Family Psychiatrist.
The report dated 11 September 2015 was a result of interviews with the mother, the child and the maternal grandmother on 18 August 2015 and with the father on 19 August 2015.
As to the circumstances of the complaint on 13 December, the mother reported to the single expert:
Asked if she had any doubts about what had allegedly happened and whether the child had misinterpreted events, [Ms Akbar] described how, on that day, [the child] had left her to spend time with [Mr Jamal] "so happy and joyful, not complaining about anything on her body".
After the visit, still dressed in her casual clothes, the child returned "crying, sore, not able to walk", which "shocked". [Ms Akbar]. [The child] had been unable to pass urine and her "private part was really dark red". [Ms Akbar] asked her what happened because of "the way she was, crying. I was all over the place, trying to calm her down". She added she did not want to remember that night.
Before the alleged incident, earlier in the year, [the child] had a urinary tract infection (llTI) but did not experience "that type of soreness". She use to say it "burns" when she urinated and [Ms. Akbar] had checked her peritoneum, which did not show any obvious changes.
[Ms Akbar] could not recall the child scratching herself or complaining about burning after the "incident". While the child can get constipated, with associated abdominal pain and anal discomfort, [Ms Akbar] has not seen her peritoneum looking inflamed again.
Adamant she had never spoken to the child about abuse until the child spoke to her and MGM, [Ms Akbar] reported the child has never shown any sexual interest or behaviours. She asserted "we are not that type", to induce false beliefs in a child.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (s 60CC(2)) and additional (s 60CC(3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)];
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)];
c)The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
If the presumption in s 61DA is to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable.
If a parenting order is to be made by consent and the order provides or is to provide for equal shared parental responsibility the Court may, but is not required to, consider equal or substantial and significant time [s 65DAA(6)].
The parties agree, and the ICL supports, an order for equal shared parental responsibility. In all of the circumstances, it is appropriate that such an order be made by consent.
The parties are in substantial agreement as to orders to be made subject to findings as to abuse and risk. Neither seeks equal or substantial and significant time, such orders are clearly in any event not in the best interests of the child at present.
Otherwise, at the conclusion of evidence and submissions there was, subject of course to the Court’s findings as to sexual abuse and unacceptable risk, little in issue between the parties in the absence of positive findings as to abuse and risk.
Best Interests:
The Primary Considerations: s 60CC(2)
The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b).
Section 60CC(2)(a) – “meaningful” relationship
In Mazorski v Albright [2007] FamCA 520; Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
At present the child’s relationship with the mother is significantly enmeshed with criticism from both the single expert and Dr C that the mother has facilitated the inappropriate empowerment of the child. The nature of the mother’s long-term relationship with the child will be the subject of the ongoing therapeutic intervention as will the nature of the ongoing relationship between the child and the father. Should the mother continue with her enmeshment and empowerment of the child she will do much to destroy any prospects of the child having a meaningful relationship with the father. In that circumstance, it may well be that on further application the Court will need to consider the question of the child’s primary residence.
Should the proposed therapeutic intervention and the ongoing model proposed by the ICL be implemented with the goodwill on both sides, then there is prospect of this child having a meaningful relationship with both parents. The existence of such a meaningful relationship is significant and important to the child long-term particularly in the light of an adverse consequences that may flow to the child should her parental relationships not be restored to normality as opined by the single expert Dr G.
Section 60CC(2)(b) – need to protect
This factor represents the initial threshold determination that needed to be resolved by the Court and has been resolved above. A finding of sexual abuse is unable to be sustained on a consideration of all the evidence and thus the question of unacceptable risk to the child falls away except in one respect.
The father has had some engagement with mental health practitioners but he has unilaterally disengaged. His immediate relationship with the child over the next few years will be governed by orders to be made substantially by consent. However, it is incumbent upon him to appropriately engage with his mental health practitioners in order that the mother may have some confidence in his ability to appropriately provide to the child when the child is ultimately in his unsupervised care.
The Additional Considerations:
Section 60CC(3) sets out the additional considerations:
a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views;
The nature of the views expressed by the child and the circumstances in which they were expressed are considered above. In the unusual context of this matter it is inappropriate to afford those views any weight in the context of the agreed proposals of the parties to enter into appropriate therapeutic intervention.
b)the nature of the relationship of the child with:
i)each of the child's parents; and
ii)other persons (including any grandparent or other relative of the child).
The relationship of the child with each of the mother and father is the subject of consideration above. There are concerns as to the mother’s ongoing enmeshment of the child in not only the allegations of abuse but also the ongoing conflict between herself her family and the father. The mother is subject to criticism by the expert witnesses in these proceedings as to her inappropriate empowerment of the child and it is hoped that she will give appropriate consideration to that criticism and with the help of Dr C seek to remedy the nature of her relationship with the child. The father’s relationship with the child although significant and substantial until late 2013 has been emasculated in the circumstances discussed above. The parties have resolved, by consent, an appropriate therapeutic pathway to address the issue. Should it fail for reasons that are sheeted home to the mother, then regrettably, further application may need to be made to the Court as to the child’s primary residence.
c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long-term issues in relation to the child; and
ii)to spend time with the child; and
iii)to communicate with the child.
The child has for almost four years been in the sole primary care of the mother with very limited engagement with the father as discussed above. The parties have agreed that moving forward they will share long term parental responsibility for the child which hopefully will see them both engaged appropriately in major decisions relating to the child’s life. The future time to be spent by the child with the father will be the subject of orders that will hopefully remedy the absence of the father from the child’s life over the last few years.
ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
Since separation the child has been maintained primarily by the mother. The father, for his own reasons, chose to remain out of employment, although there is some circumspection as to his evidence of his present financial circumstances. He has provided little support for the child since separation.
d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
i)either of his or her parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
In the context of the parties’ agreement for ongoing therapeutic intervention this factor is of little utility save for the hopeful prospect of the child’s relationship with the father being ameliorated.
e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
There is no issue in these proceedings arising from this consideration.
f)the capacity of:
i)each of the child's parents; and
ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
Parental capacity presents as problematic in the context of this matter. In the absence of any finding of abuse or risk, the mother’s ongoing capacity to provide appropriately for the child, particularly the child’s emotional needs, will depend substantially on the outcome of family therapeutic intervention. Should the mother remain entrenched in her attitude to the father, then for reasons given by the single expert she risks harm to her daughter. However, otherwise in a practical sense her parenting capacity has seen the child well provided for and progressing well at school.
Prior to December 2013 there was no issue as to the father’s capacity to provide for the child in the context of the time the child spent with him. His future capacity to provide appropriately for the child will depend upon the successful outcome of therapeutic intervention and implementation of the orders substantially agreed to by both parents.
g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant.
In the context of the discussion above this factor is of little utility save that the child’s age provides some prospect for the amelioration of her relationship with the father.
h)…
i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
The mother on a superficial consideration has demonstrated an appropriate attitude to the child and her responsibilities of parenthood in so far as they relate to the child’s maintenance and support and educational issues. But for reasons more fully discussed above her conduct in the context of the asserted abuse allegations and what transpired thereafter calls into question such qualities. Hence, the agreed need for therapeutic intervention to more properly focus on her attitude and views as to parenting of the child. Only time will tell whether she has the ability to respond appropriately to such intervention in the interests of her daughter. Should she not do so, then as referred to above, consideration may need to be given to the child’s primary residence.
The father for his part, notwithstanding his difficulties in his relationship with his daughter, has sought to remain out of the workforce since separation for almost four years. He has provided precious little financial support for the child. It appears that he chose to end his employment of his own volition. He has demonstrated an inappropriate attitude to his responsibilities as a parent to provide for his child notwithstanding the difficult circumstances that such relationship was placed in by reason of the allegations. It is to be hoped that he will promptly return to employment so as to be able to provide appropriate support for the child and indeed be able to make contribution to the cost of ongoing therapeutic intervention, his supervised time with the child and, of course, his costs of ultimately having the child spend time with him on an unsupervised basis.
j)any family violence involving the child or a member of the child's family.
There has been family violence historically in the context of the parties’ relationship. There is some indication that such conflict between the mother and father has been fuelled to some extent by cultural difficulties and the significant presence of the maternal grandmother. The father in his evidence acknowledges verbal conflict and arguments with the mother but denies the perpetration of any physical violence. This consideration is not significant in the overall context of this matter.
k)if a family violence order applies, or has applied, to the child or a member of the child's family – any relevant inferences that can be drawn from the order, taking into account the following:
i)the nature of the order;
ii)the circumstances in which the order was made;
iii)any evidence admitted in proceedings for the order;
iv)any findings made by the Court in, or in proceedings for, the order;
v)any other relevant matter.
An interim family violence order was made on initial complaint on behalf of the child. In circumstances discussed above the complaint was dismissed at hearing on 10 April 2014.
l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is appropriate to make orders that may bring a resolution to these proceedings. Orders proposed by the ICL and substantially agreed to by the parties will finalise the current applications.
m)any other fact or circumstance that the Court thinks is relevant.
There is no other relevant fact or circumstance.
Overall, it is appropriate and in the child’s best interest that orders substantially as proposed by the ICL reflecting the expert evidence of Dr G and Dr C and supported substantially by both parties be made.
Orders will be made accordingly.
I certify that the preceding one hundred and fifty two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 August 2017.
Associate:
Date: 9 August 2017
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