JH & RH
[2005] FMCAfam 584
•3 November 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JH & RH | [2005] FMCAfam 584 |
| FAMILY LAW – Children – young child – assessment of parenting capacity – children have different needs at different ages and stages of development – domestic violence – role model – property – add backs – small asset pool – child will reside with father – unlikely mother will ever have paid employment or pay child support – court must have regard to the actual orders not merely percentage distribution – mother’s property and spouse maintenance applications dismissed. |
| Family Law Act 1975, ss.60, 68, 75, 79 Evidence Act 1994 Child Support (Assessment) Act 1989 |
| In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626 In the Marriage of Clauson (1995) FLC 92-595 Bevan and Bevan (1995) FLC 92-600 Biltoft and Biltoft (1995) FLC 92-614 |
| Applicant: | JH |
| Respondent: | RH |
| File Number: | PAM4628 of 2004 |
| Judgment of: | Ryan FM |
| Hearing dates: | 28, 29 June 2005 and 1 July 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 3 November 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Thisleton |
| Solicitors for the Applicant: | Calvin Nelson & Co. |
| Counsel for the Respondent: | Ms S. Christie |
| Solicitors for the Respondent: | Armstrong Legal |
ORDERS
All prior family law orders are discharged.
“The child” Ahmed (not his real name) resides with the father.
The father has sole responsibility for making decisions about the long term care, welfare, and development of the said child. Prior to implementing any decisions concerning the child’s education or other long term parenting issues the father must consult the mother and have proper regard to her opinion.
The father and the mother has sole responsibility for making decisions as to the day to day care, welfare, and development of the said child whilst he is in their care.
The mother have contact with the child as follows:
(a)Commencing 6 November 2005 from 1.00 pm Sunday until
5.00 pm Monday each week;(b)Commencing the first weekend after the child turns 4 years old, from 1.00 pm Sunday until 5.00 pm Tuesday each week;
(c)Upon the child commencing school orders 5(a) and 5(b) are discharged;
(d)Upon the child commencing school, from after school Friday until 5.00 pm Sunday each alternate weekend. Contact pursuant to this order starts the second weekend after the child commences school;
(e)Upon the child commencing school, after each weekend the child is in the father’s care from after school Monday until 6.30 pm the same day;
(f)Commencing at the end of term 1 in the year the child starts school, for one week in each of the shorter school holidays. Contact pursuant to this order shall commence at 12 noon on the first Saturday of the school holidays and finish at 12 noon the following Saturday;
(g)Commencing at the end of the child’s first year at school, for two one week periods during each Christmas school holidays. Unless the parties agree differently, from 2.00 pm Christmas Day in the year this order becomes operative and 2.00 pm Boxing Day the following year alternating annually thereafter. In addition from 12 noon the second Saturday in January until 12 noon the following Saturday each year;
(h)For Mother’s Day in each year if it falls on a non-contact weekend from 9.00 am to 5.00 pm;
(i)For the second half of Eid Al Fatar;
(j)Commencing 2007 at the conclusion of Haj and each alternate year thereafter; and
(k)At other times as the parties agree.
Upon the child commencing school, weekend contact is suspended during school holidays.
If Father’s Day falls on a contact weekend, contact is suspended that weekend.
In the event the father’s employers require him to take leave at times which coincide with the mother’s contact, the mother’s contact is suspended for the relevant period. The mother shall have make up contact at times she nominates, which contact shall be taken within three months of the suspended contact. The makeup contact shall not be added to another contact period or taken during the child’s school week.
During contact the mother is to reside with her mother or another agreed adult.
Until the child turns seven the mother’s contact shall be facilitated by an adult family member.
On those occasions when the mother is collecting the child from school, as soon as she collects the child she must telephone the father and confirm the child has been collected. In the event the mother fails to collect the child within ten minutes of the end of classes on three occasions her commencement time for contact which commences from school will change. Thereafter contact will commence at 4 pm on any relevant school day.
For six months following the making of these orders contact will commence at Central West Contact Service. Thereafter contact will commence outside Granville Town Hall. At the end of contact the mother shall return the child to the father or his nominee outside Granville Town Hall. During changeover the parties are restrained from bringing any person other than their respective mothers to collect or return the child. In the event Central West Contact Service is unable to immediately commence facilitating changeover, contact change over shall occur at Granville Town Hall until a place becomes available.
Unless otherwise defined in these orders school holiday contact shall:
(a)Be calculated from the first Saturday after the last day of school until and finish the Sunday immediately before school resumes;
(b)Years ending in a zero are defined as years ending in an even number.
If either party intends to take the child on holidays or take the child away from his normal place of residence for a period of in excess of 24 hours they shall give the other party prior written notice of the intended date of departure and the proposed destination and address.
Each of the parties is entitled to obtain directly from any school attended by the child or from any health or welfare professional or other professional attended by the child, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the child and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Each of the parties do all such acts and things necessary to comply with any treatment prescribed or recommendations made by a health practitioner for assessment or treatment of the said child including any need for hospitalisation.
Each party keeps each other informed of all medical, dental and other health related treatment being undertaken by the child.
The father shall nominate a family general medical practitioner or surgery which will be the child’s primary treating doctor. To the extent possible the parties shall ensure that the child attends this treating doctor accompanied by one of the parties, except in the case of an emergency.
Until further order the mother and the father, by themselves, their servants or their agents are restrained from removing or attempting to remove the child Ahmed (a male) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said child’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
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.
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.
Both parties give each other not less than twenty one (21) days notice in writing of their intention to change address.
Both parties shall keep the other advised of contact telephone numbers. These telephone numbers are to be used in relation to matters concerning the child only.
The mother’s applications for spouse maintenance and the adjustment of property are dismissed.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Parramatta |
PAM4628 of 2004
| JH |
Applicant
And
| RH |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for spouse maintenance, property adjustment and parenting orders. The parties are first cousins and married when they were young. After a relatively short marriage the parties separated. The parenting orders concern the parties’ only child, Ahmed (not his real name). Ahmed is three years old and since separation has lived with his father and paternal grandmother. The father’s mother cares for Ahmed whilst the father works full time.
The mother is intellectually disabled and functions at an equivalent level to a person between 8 years and 3 months to 8 years and 8 months. The father claims that because of the mother’s intellectual disability she is unable to adequately care for their son. The mother agrees that without substantial support she is unable to provide for Ahmed’s physical and intellectual needs. However, the mother presents her residence application on the basis she and Ahmed will permanently reside with her mother. In this environment the mother contends she is equipped to provide for Ahmed’s needs.
During their marriage the mother claims that she was virtually a prisoner in the home. She alleges the father forbade her to maintain contact with her family and that she was a victim of systematic emotional and physical abuse, which allegations the father denies. Concerning spouse maintenance, the mother claims that she does not have the intellectual capacity for paid employment. Notwithstanding his modest income, the mother says the father has the capacity to pay her spouse maintenance.
So that it is clear to the parties even although I do not address every factual matter raised in the evidence I have considered all of the evidence. Those factual matters which have been particularly influential in reaching my conclusion are specifically addressed. Some are included because they consumed hearing time even although ultimately they have only marginal relevance. To a considerable extent the parties and the mother’s family in particular seemed to want to traverse old grievances even where these have no obvious connection to the child’s welfare and thus my decision. A court is not required to indulge this approach and I have tried to steer away from irrelevancies and focus on the child. Hopefully in the future the families will put past unhappinesses behind them by taking the same approach.
The applications
JH “the father” filed an application for final orders on 14 September 2004. In essence, he proposes that Ahmed lives with him and that he is solely responsible for making decisions about the child’s long term care, welfare and development. The father supports supervised contact and is opposed to the child having overnight contact before he starts school. Concerning the mother’s financial applications, the father says both the mother’s property and spouse maintenance applications should be dismissed.
RH “the mother” filed an amended response on 15 November 2004. The orders she seeks are summarised below:
·That Ahmed lives with her.
·That the father has contact from 5.00 pm Friday until 5.00 pm Saturday each week.
·That contact is suspended at specified times on Eid Al Fatar and at the conclusion of Haj.
·Contact changeover take place at Bass Hill Police Station.
·That the father pays her $7,080 by way of property adjustment.
·That the father pays her $200 per week spouse maintenance.
·That the parties have joint responsibility for making long term decisions concerning their sons care.
Short history
The father was born in Lebanon in 1978.
The mother was born in Australia in 1982.
The parties met in about May 1998 when the mother visited Lebanon with her mother. The parties are first cousins. The father’s father is the maternal grandmothers’ brother. When the mother visited Lebanon in May 1998 she stayed with the father’s family in their home at Akar. At that time the mother was 16 years old and still at school and the father was 20 years old. Before the father went into military service and the mother returned to Australia, they became engaged. During this trip the parties only spent a few weeks in each other’s company.
In August 1998 the mother and her mother returned to Australia.
On 27 February 2000 the father arrived in Australia. During the intervening period, the parties had brief telephone conversations, but did not see each other. When the father arrived in Australia he moved in with the mother’s mother and family at Birrong. The mother lived in the same home. Shortly after the father arrived in Australia, he started working as a carpenter for a wardrobe company. Within a relatively short time, relations between the father and the mother’s family soured. For the first time, the parties were spending considerable time together. Slowly the father began to realise the mother is intellectually disabled and he became unsure about whether they should marry. Shortly before their wedding, the father called the wedding off and decided to return to Lebanon. However, he changed his mind and the wedding went ahead.
The parties married in July 2000. They commenced cohabitation in their own residence in November 2000. When the parties commenced cohabitation neither party had any assets, liabilities or financial resources of significance.
Ahmed was born in mid 2002. Coinciding with Ahmed’s birth, the father’s mother visited the parties and lived with them until she returned to Lebanon on 30 September 2002. After the father’s mother returned to Lebanon, the mother cared for Ahmed during the day while the father worked full time.
By mid 2003 the father was highly concerned about the mother’s capacity to care for Ahmed. While he was at work the mother telephoned him often asking that he return home to help with their son. Whilst at home with his mother, on 11 December 2003 Ahmed burnt his hand on the stove. Although it was probably unnecessary the father took Ahmed to Westmead Hospital where the child was seen by a doctor and a social worker at the burns unit. Armed with a report from from Centacare, a medical practitioner, Auburn Hospital and Community Services and a social worker from the Westmead Hospital Burns unit the parties applied to the Department of Immigration and Multicultural Affairs for the father’s mother to be granted a carers visa, basically so that she could care for the mother and child. Before doing this the father unsuccessfully applied for Ahmed to attend day care. When the day care option failed the father decided he had two choices, either give up paid work and care for the child or ask for family help. Estranged from the mother’s family the parties asked the father’s family, all of whom live in Lebanon, for assistance. Fortunately the father’s mother was granted a carer’s visa and she returned to Australia in July 2004. Upon her arrival she moved into the parties’ home and basically took over running the home, including Ahmed’s care.
On 13 August 2004, at the father’s instigation the parties separated. Although separated they remained living together under the one roof.
In early September 2004 the parties executed consent orders which in summary provided that Ahmed would reside with the father and until he started school or preschool, the mother would have contact from 8.00 am to 4.00 pm each Wednesday and Friday at the father’s home. After Ahmed commenced school or preschool, it was agreed that the mother would have contact one day each weekend and after school each Wednesday and Friday. The father agreed to pay the mother $7,080 by way of property adjustment. Finally, the mother agreed that she would not take Ahmed to her parents’ home until he was six years old and the father agreed[1]. Although presented as a joint application, the Family Court of Australia requisitioned the application and these consent orders have never been approved. I accept the mother’s evidence she felt under enormous pressure to sign these consent orders. She received scant legal advice from a solicitor the father arranged, while the father waited outside. Although the father believes the orders were appropriate, the combined effect of these circumstances, the mother’s intellectual disability and her unhappiness with the parenting arrangements means the agreement can have no weight.
[1] Annexure L father’s affidavit
At the father’s request, the mother vacated their rented home on 8 September 2004. Accompanied by her mother and five or six male persons, later that evening they forcibly removed the child from the father and his mother.
On 14 September 2004 the father commenced these proceedings and at the same time sought interim residence.
On 20 September 2004 the court made interim orders which are set out below.
1. The child AHMED (a male) live with applicant father.
2. The respondent mother have contact to the child each Tuesday and Friday from 11 am until 5 pm
3. Contact changeover shall take place at Merrylands Police Station.
4. The mother’s contact is to be supervised by either her mother or one of her sisters.
5. Until further order the applicant and the respondent, by themselves, their servants or their agents are hereby restrained from removing or attempting to remove the children AHMED (a male) from the Commonwealth of Australia.
6. The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said child from the Commonwealth of Australia.
7. Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
8. The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
9. 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.
Ahmed returned to his father’s care on 20 September 2004. Since then the father’s mother has been the child’s primary carer. The mother has exercised contact as provided in these and subsequent orders. All contact has been exercised in her mother or sister’s presence.
By agreement, the interim orders were varied on 29 October 2004. These subsequent orders are set out below:
1. That orders 2 and 3 of the orders made on 20 September 2004 be discharged.
2. Subject to the conditions included in order 4 made 20 September 2004 that Ahmed have contact with the mother as follows:
(a)Each Friday between 11.00 am and 5.00 pm;
(b)Each Sunday between 11.00 am and 5.00 pm.
3. That changeovers on Friday take place at Granville Police Station and change overs on Sunday take place at Birrong Police Station.
Without admissions on 30 September 2004 the father consented to an apprehended violence order in the mother’s favour.
Because the outcome of the residence applications may significantly influence the financial applications, I will deal with the parenting applications first.
The father’s circumstances
The father resides with his mother and Ahmed in a rented two bedroom home unit at Granville. The father uses one bedroom and Ahmed shares his room with his grandmother. As Ahmed’s needs change, the father plans to rent a three-bedroom home unit so that the child may have his own bedroom. The father works full time as a carpenter. On Mondays to Thursdays he starts work at 6.00 am and finishes at 5.30 pm. On Fridays he finishes at 1.00 pm. The father’s usual work hours are 7.00 am to 5.30 pm. However, he has increased his hours in order to have sufficient funds to pay his legal fees for these proceedings. When the father leaves for work in the morning, Ahmed is usually asleep. The father arrives home at about 6.00 pm and sits down for the evening meal with Ahmed and his mother. After dinner they play and sometimes visit local shops. The father lies with Ahmed in bed until he falls asleep. Provided he has not been required to work on Saturdays, the father and child spend the day together.
The father supports his mother and Ahmed from his wages. He does not receive child support and his mother has no income from which she could contribute towards her own living expenses. As a new migrant the father’s mother must wait two years before she is eligible for social security income support.
The father’s mother was born in Lebanon in 1952. In July 2004 she was granted a carer’s visa and is entitled to reside in Australia indefinitely. The father’s parents married in July 1972. Including the father, his parents have seven children. The paternal grandfather and the father’s six siblings all live in Lebanon. Although she misses her husband and the rest of her family, the paternal grandmother is committed to Ahmed’s care and will remain in Australia helping her son and grandson for so long as they need her. The paternal grandmother makes this commitment aware it probably means she will remain in Australia for at least a few years. Since 20 September 2004 other than when Ahmed is with his parents, the paternal grandmother has been primarily responsible for her grandson’s care. In her affidavit the paternal grandmother describes Ahmed’s daily routine. I have no doubt that she cares for Ahmed competently and that he is well cared for. The father’s mother is fluent in Arabic, but can neither speak, read nor write English. In their home, the father, his mother, and Ahmed speak Arabic. Because the father works full time, his mother is primarily responsible for contact changeover. Although it is denied, I accept that during changeover the mother’s nephews demean the paternal grandmother calling her names such as “donkey”, “animal” and “no brain”. Although she is willing to continue to be involved in contact changeover, the paternal grandmother is understandably concerned that the changeover arrangements occur without abuse or aggression towards her.
The father plans to continue working full time. He believes it is important that he provides financially for his family to the best of his ability. He has a strong work ethic and is reluctant, unless circumstances force it, to give up paid employment. The father and his family are Muslim and the father will ensure that Ahmed is reared in accordance with Islam and with an appreciation of Lebanese culture. The father has made his life in Australia and does not plan to return to Lebanon to live.
The father is estranged from the mother and her family. He believes the mother’s family is responsible for fire bombing his car and is afraid they will resort to physical violence if his residence application succeeds. The mother does not believe any member of her family firebombed the father’s car. The father has diligently complied with all contact orders and I am satisfied he will continue to do so.
The mother’s circumstances
The mother resides with her mother in a four-bedroom house rented from the Housing Commission. This is where the mother lived during her childhood. After separation the mother returned to live with her mother and her younger brother moved in with her sister Taleya (not her real name). The mother has at least two brothers and a sister. Her parents are separated and her mother has a relationship with a gentleman referred to as Wasim (not his real name). Wasim owns a shop where the maternal grandmother spends a large amount of her time. She denies that she works in the shop.
The mother received her education at a special school for children with an intellectual disability. She has never had paid employment and it is unlikely that she ever will. With her mother’s help, in 1999 the mother applied to Centrelink for a disability support pension. As part of the application process, the mother was assessed by a senior counsellor and registered psychologist. The same psychologist assessed her again in late 2004. Because of the mother’s English language limitations, the psychologist was assisted by an Arabic speaking TAFE counsellor. Concerning the mother’s presentation the psychologist reports, “RH was neat, clean and well dressed. This is consistent with her presentation from our meetings in 1999. Her behaviour was also consistently courteous. The differences were in her language and engagement. In 1999 she was not engaged in our meeting, neither in English, nor in Arabic when Mrs C joined us. But now RH participated in describing her life and experiences and stating clearly her desire to learn and improve her prospects”.
The psychologist administered a series of psychological, adaptive and intelligence tests. These included the Wechsler Adult Intelligence Scale, Third Edition; Wide Range Achievement Test, Revision 3; Kaufmann Brief Intelligence Test and Raven’s Standard Progressive Matrices. Ms McCormack reported that the mother was cooperative and tried her best with the various tasks presented. The psychologist assessed the mother’s results as, “Equivalent to a person 8 years 3 months to 8 years 8 months at the 10th percentile”. Although the mother had completed the testing twice, once in 1999 and again in 2004, the psychologist concluded that the interval would not allow her to recall answers previously given. She reports, “RH’s results indicate that she indeed did not learn very much formally at school. She achieved results one would expect to find in a child in grade 1 for reading and spelling and grade 2 in arithmetic”. The psychologist concluded, “Her WRAT3 results indicate that she is functioning only at the early primary level of education. She had learned some basic methods to approach and solve basic language and arithmetic problems. RH described how she had not used English in the past four years. Had we only tested her in English her results would have been lower in the verbal and full scale area. As it is, her vocabulary shows as a relative strength for her and is stronger than in previous assessments where she would not have had Arabic support. This allowed her to explain what she did know. RH’s performance score is the same in 2004 as it was in 2002, indicating stability in this non-verbal problem solving area”. Concerning her overall conclusions the psychologist reported, “Bearing in mind RH’s limited exposure to English and the nature of her life and difficulties through her life, it would be reasonable to allow some margin for her to improve her language based skills over time with more intensive studies and higher motivation on her part. This would lead to an expectation that the above verbal results do not represent her full potential. Given the stability of her results on the non-language based tests, however, it would be unrealistic to believe she could quickly learn enough to be able to cope in an unsupported and independent environment”.
Although the mother was born in Australia and completed all her schooling here, she has lost confidence in English and prefers to communicate in Arabic. In the hearing, the mother required an Arabic interpreter in order to give evidence. Unfortunately, the mother could not manage to give a reasonable account of her circumstances or deal with cross-examination. Time and time again, she required basic propositions to be repeated. Again and again she was unable to answer questions and even when she did answer questions, there were long delays between the question and the answer. Answers to questions, when proffered, were often non-responsive and it was frequently impossible to discern a nexus between the question and the mother’s response. At times it appeared as though she had a mantra she wished to recite and was determined to do so irrespective of the question. Eventually, I became so concerned that the mother was unable or unwilling to respond to questions, that I asked her to leave the court room briefly while I discussed her difficulties with counsel. Firstly, I explored with counsel whether they were satisfied with the interpreter’s competence. The interpreter was a NAATI level 2 interpreter with nearly six years court interpreting experience. Both counsel submitted the interpreter was appropriately qualified and that difficulties with the mother’s testimony did not arise because of the interpreter. Indeed, the mother’s counsel requested that the court do its best to ensure that the same interpreter assisted the mother throughout the hearing. From my own observations, it was clear that the mother responded warmly to the interpreter and the interpreter did all that could reasonably have been expected of her to assist the mother to comprehend questions and respond. Fortunately the same interpreter assisted throughout the hearing.
Whether questioned in English or Arabic, the mother’s comprehension of even simple propositions is seriously compromised. Her oral evidence bore little relationship to her written testimony. Sadly, it became plain that to a considerable extent the mother’s written evidence is likely to be an exaggerated account of her circumstances and is generally less reliable than her oral testimony. In some instances there are core consistencies in relation to central events which provide a scaffolding of reality which the mother, and members of her family, have exaggerated into a far more concerning story, presumably for forensic advantage.
Relevant law – parenting proceedings
Residence and contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68(F)(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.
Determining the child’s best interests
Domestic violence and associated matters
One of the pivotal issues in this case concerns domestic violence. Because the mother claims her fear of the father underpins her failure to accept necessary support with the child’s care this issue will be addressed first. In her written testimony the mother says, “Approximately four to six weeks after we were married, the first incident of domestic violence and intimidation began. The applicant would hit me about the body and throw me against the wall, the couch and to the floor in any room of the house. He would say words to the effect of, ‘You cannot see your parents. If you see them I will kill you with a knife”. The mother also says, “The applicant would not allow me to leave the house on my own. He would put tape around the door frames. He said to me: don’t go out. Stay at home. Don’t let your parents take you”. The mother says she was frightened the father would hurt her, which fear explains reports she gave agencies and childcare workers concerning her inability to care for Ahmed. Simply put, the mother alleges the father constructed an elaborate ruse being her inability to care for Ahmed to secure his mother’s carer’s visa. Thus, interviews the mother is reported as giving in which she expresses misgivings concerning her parenting capacity and need for her mother-in-law’s help stems from fear of the father’s reaction if she said otherwise. Similarly, it is her fear of the father which resulted in her withdrawing from her family and refusing other support. So too, her fear of the father explains her decision to sign consent orders, even though she did not want to do so. If the mother’s evidence concerning domestic violence is correct, this casts serious doubts upon the father’s suitability as an appropriate role model and grave concerns about his willingness to promote the child’s relationships with the mother and members of her family.
It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. In M and M (1988) 166 CLR 69 the High Court discouraged such findings saying that 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”.[2] These statements are equally apposite to the issue of family violence. Before it can make a positive finding the court needs to be satisfied according to the civil standard of proof. See s.140 Evidence Act 1994 (Cth).
[2] ibid at 77
In support of her evidence that she is a victim of an abusive partner, the mother adduced evidence from a counsellor and domestic violence group worker. On the basis of a one hour interview in November 2004, the counsellor concluded, “I am of the opinion RH has been living in a domestic violence relationship with her husband for four years” and
“I write this letter in support of RH and her ability to care for her child”. When she was asked to explain the basis of her assessment of the mother’s ability to parent Ahmed, the counsellor agreed she had not seen the mother and child together, or indeed even seen the child at all. She somewhat lamely claimed that she could intuitively accept the mother’s assertion that she is a capable parent. Her opinion of the mother’s parenting capacity without observing her with the child must be treated with great caution. It is concerning that this witness prepared a report when she knew its purpose was to support the mother’s residence application when she had no proper basis for her opinion. With little information the counsellor appears to have accepted the mother’s domestic violence story and, suspending her professional obligations, assumed the role as her advocate. Because she did not attempt to confer with the father, did not make any meaningful attempt to test the objective reality of the mother’s story, either directly or through other sources, her comfortable satisfaction that the father has subjected the mother to four years of domestic violence must be treated with great caution. In her conclusion this counsellor purported to assert a fact viz domestic violence for which she had no proper basis. I give her evidence no weight.Because the father denies that he was violent, his counsel attempted to cross-examine the mother concerning her allegations. Contrary to her written testimony that his violence commenced after they married, in her oral testimony the mother alleged domestic violence commenced whilst the parties lived with her family prior to marriage. Three times the father’s counsel asked the mother to describe what occurred when the father allegedly threw her against a wall. Her first two answers were completely non-responsive, interspersed with long pauses, during which the mother appeared to be trying to think up an answer. The mother was unable to give any surrounding detail about the incident when she says she was thrown into the wall. Basically the mother gave as many different answers to the question about when domestic violence began as there were questions. Her answers ranged from prior to marriage to the first time being two and a half years after they married. Other than an occurrence at separation which I will deal with later the mother was unable to give the surrounding circumstances of any individual event of domestic violence. The mother said she was pushed and pinched, thrown on a couch and into walls and on the floor. Where this took place, when and any other part of these events was not revealed. Because of her difficulties, I looked to see if at least there is a core consistency in her evidence. The only consistency I could discern is a generalised allegation of violence, the details of which the mother cannot articulate. As she is able to give considerable detail to what I will refer to as “the shoe incident” I am not persuaded that the mother’s inability to give greater details about other violence and abuse allegations arises from her disability. On balance, I am satisfied that the mother’s oral and written evidence concerning domestic violence is greatly exaggerated. Her exaggeration, fuelled by her mother’s and sister’s determination the family will retrieve Ahmed is regrettable and raises obvious concerns about the mother and her family’s willingness to undermine the father. If Ahmed lives with the mother and her mother, I am most concerned he will reside in an environment which is predisposed to lying about the father when it suits. If Ahmed is exposed to these attitudes, his relationship with his father in the long term may be seriously compromised. This is a matter to which I attach considerable weight. It weighs against the mother’s residence application.
The mother sought to persuade the court that she was effectively a captive of the father’s controlling and abusive behaviour. Prior to their marriage the father had fallen out with the mother’s sister Taleya and his relationship with his mother-in-law was strained. Essentially, their disagreement centred on the father’s reluctance to spend, to him, a large sum of money on an elaborate wedding. He had few financial resources and his preference was for a modest wedding so that he could start saving for a home. In the face of unrelenting pressure to change his mind, the father gave in and the mother’s family had the large wedding they wanted. Unfortunately this was the precursor to the father’s unhappiness with the mother’s family. From this point onwards he felt overborne by them and it seems decided that in order to establish his own family unit in which he and the mother made decisions their own way and enjoyed a modicum of independence, some personal distance from the mother’s family was required. Although later in these reasons I am critical that at times the father went too far in distancing he and the mother from her family, I accept some distance was needed if this family unit was to survive. As soon as the parties moved into their own unit the maternal grandmother harassed the father to immediately have the telephone connected, something I accept he had difficulty affording. Her insistence that this is evidence he tried to isolate the mother is made without proper foundation.
The father gave an exaggerated account of a family meal which occurred at Taleya’s home before the parties’ marriage during which he alleges she threatened him with a knife. I accept Taleya’s evidence that she was merely using a knife in the kitchen and she made no threat to the father. From both side’s perspective, this incident has been blown out of all proportion. It does not contribute in any way to either party’s allegations concerning the other’s behaviour.
As part of his controlling behaviour, and to ensure the mother did not see her family, the mother says that as soon as they moved into their own home the father taped the front door when he left for work in the morning. This was so that he would know if she left the unit or allowed anyone to enter it. The impression the mother sought to give was that this occurred throughout the marriage. However, the mother conceded she at all times had a key to the parties’ home unit and she was always able to leave. As part of her property claim and in an attempt to establish her capacity to care for Ahmed, she gave evidence that she alone did the washing and hung the clothes outside to dry. Each day she took Ahmed for a walk. Thus as part of her daily routine she came and went from the unit, which flies in the face of the father trying to stop her or monitor her movements. During cross-examination, the mother eventually said she saw sticky tape once or twice on the front door. On her own account her evidence that she was taped into the home unit was grossly exaggerated. Her exaggeration seriously undermines even her reduced allegation. I am far from satisfied the father used sticky tape at all and prefer his denial.
Sergeant White (not his real name) gave oral evidence. Sergeant White first met the parties in about January 2001 when he was called to their home unit as a result of the father’s car being fire bombed. Sergeant White spoke with the father who nominated the mother’s mother, sister and two brothers as the offenders. The father explained their animosity towards him as deriving from ongoing family problems. Sergeant White interviewed members of the mother’s family and concluded the father’s allegations about them were unfounded and unable to be proven. It appears that at his meeting with the mother’s family members, they raised concerns about the father’s treatment of the mother. On 7 January 2001 a COPS entry[3] summarises their concerns and subsequent actions as follows, “About 1.45 pm on 7 January 2001 police attended the above address in response to a call from RH’s mother and sister who had attended that address to visit their relative. RH is recently married and lives there with her husband JH. The relatives stated that they could not raise RH inside the premises and were concerned for her after not seeing her for a number of days. JH arrived home whilst police were present and police were able to ascertain that RH was in fact at home and simply did not wish to see her relatives.”
[3] Exhibit P
When Sergeant White visited the mother in late January/early February 2001 she reluctantly gave him access to the home unit. Persuaded to do so, the mother made no complaint about the father’s treatment of her or seclusion from her family. Sergeant White observed the home was neat and tidy. However, because of the mother’s family’s concerns, he contacted the Department of Community Services and Muslim Women’s’ Centre about the mother. Approximately one week later, Sergeant White accompanied a worker from the Muslim Women’s Centre again visited the mother. The worker spoke with the mother concerning her welfare. Although she was quite reserved, the mother made no complaint concerning the father’s treatment of her, nor suggested that her lack of contact with her family was troubling her or forced on her by her father. All that had occurred was a few days had passed without the mother seeing her family. Their involvement of police was inappropriate and heavy handed. In a climate of deteriorating family relations this only made matters worse.
The mother’s sister continued to contact Sergeant White complaining the family was experiencing difficulty maintaining contact with the mother. The significance of Sergeant White’s evidence is in the absence of compliant by the mother during his attendances upon her about the father’s treatment of her or that the contact she maintained with her mother, sister and other family members was less than she wished to have. Sergeant White did not say that he saw any signs the mother had been mistreated and, I infer that this is because there were none. I do not doubt that after the parties moved into their own home the father actively dissuaded the mother from visiting her sister or having Taleya visit her. From the time the parties had their own home, the mother withdrew from Taleya because she knew this is what the father wanted. Acceding to his desire is different to being coerced to do so. The mother wanted her marriage to succeed. Aware that he and Taleya did not get along, she sided with her husband. This does not mean he threatened her if she maintained her relationship with Taleya. This type of decision is sometimes made upon marriage and is one those sidelined understandably have difficulty accepting. Taleya did not accept her sister’s distancing and regards every rejection as proof the father mistreated her sister. It is nothing of the sort. Neither Taleya nor the maternal grandmother has any appreciation their involvement of police and creation of ugly scenes at the parties’ home placed this young couple under enormous pressure and made family reconciliation even more remote. Unannounced Taleya visited the mother at hospital when the mother had her baby. I do not accept that the mother’s distress when Taleya refused to leave is because the mother feared the father’s reaction. Nor that her refusal to greet and kiss her sister emanates from the same scenario. Rather Taleya continued to demand a relationship on her terms and refused to respect the mother’s different desires. The mother’s distress was directly caused by her sister’s refusal to respect the mother’s wishes. That the mother and her sister are now reconciled is not the point.
The mother’s general medical practitioner, Dr Hrouda (not his real name), gave oral evidence. On 8 September 2004 the mother’s mother and sister took her to see Dr Hrouda. At the consultation the mother told Dr Hrouda her husband hit her with a shoe on her left arm. Dr Hrouda examined the mother and observed a twelve centimetre by two centimetre bruise on her left arm. The doctor’s notes[4] although describing the size of the bruise, make no reference to its colour. Colour assists in determining a bruise’s age. Questioned about the colour of the bruise Dr Hrouda said, “Any bruise is a red colour”. I do not accept this evidence as it flies in the face of common experience. During cross-examination, Dr Hrouda agreed the bruise was probably longitudinal and it was consistent with an injury caused by running into a door. The mother has consistently maintained the father hit her with a shoe, an issue he dealt with poorly. In a line of questioning concerning this issue, he denied ever hitting the mother with a shoe. In conflict with his earlier evidence he had never seen the mother bruised, he said about one week prior to separation the mother hit a door and her skin bruised. As cross-examination proceeded his memory seemed to fade and he was unable to recall on which arm the mother was bruised or the size of the bruise. He said the bruise, “Wasn’t that big” a description which is inconsistent with Dr Hrouda’s measurement the bruise was twelve centimetres by two centimetres. The mother’s oral evidence is consistent with her complaint to police the same day she saw Dr Hrouda. Punchbowl Police took a statement from the mother and six or seven photographs of her left arm, “Where the bruising was in evidence”. On balance I am satisfied that on 6 September 2004 during an argument concerning division of assets; the father slapped the mother’s left arm with a shoe which resulted in the bruising observed by police and Dr Hrouda on 8 September 2004. This is the incident which resulted in police taking out an apprehended domestic violence order application on the mother’s behalf. The father conceded the application. The effect of these findings is that I accept that on one occasion, at separation, the father assaulted the mother. I reject the mother’s assertion of systematic and continual abuse and domestic violence. To the extent the mother attempt to explain away statements to external agencies and community workers concerning her inability to care for Ahmed or involvement in relevant programs because of the father’s behaviour towards her, I reject her claims. As will become apparent I am satisfied the father tried to engage family and community support for the mother and child and the mother’s failure to continue to accept the assistance offered resulted from her own shyness and lack of insight into the effect her disability has upon her parenting capacity.
I do not accept the father poses any continuing risk to the mother or that in his care Ahmed will be exposed to inappropriate attitudes or violence. With respect to the other, her attempt to attribute blame on the father for her own inaction has failed.
[4] Exhibit N
I share the father’s concerns about the mother’s family behaviour towards him and his mother. The mother’s immediate family do not appear to accept rejection easily. As their forceful removal of the child from the paternal grandmother’s care demonstrates, if necessary they resort to physical force. I was unable to resolve conflicting evidence concerning whether the mother’s sister and nephews chased the father in their car after contact changeover. While I consider it out of character that he would try and provoke an altercation in a situation where he was seriously outnumbered the most likely scenario is this incident is no more than coincidence. My concerns emanate from the sheer determination of members of the mother’s family to have their own way on matters relating to the mother. This is evidenced by their persistent use of Sergeant White, creating scenes outside the parties’ homes, abuse directed towards the paternal grandmother at contact changeover, the mother’s relatives harassing the father at work which resulted in him needing to change employers and their forcibly taking Ahmed. To a reasonable extent the more extreme aspects of this behaviour has settled down while these proceedings have been underway. Whether this is because they appreciate this behaviour damages the mother’s case or demonstrates a softening of attitudes towards the father is unclear. I fear the former is more likely than the later. This is relevant to a number of issues, particularly contact changeover and the amount of time Ahmed should have with the mother, because of the hostile nature of this environment. The mother’s immediate family needs to understand that although these proceedings are ended, parenting orders are never final. This is because courts have power to change parenting orders if the child’s interests require it. If contact exposes this child to emotionally damaging hostility towards his father, sadly the mother’s contact is placed in jeopardy. It would be a terribly sad outcome for this family if the mother’s relationship with her son is jeopardised because the mother’s immediate family overtly maintains hostility towards the child’s paternal relatives.
Parenting capacity
This is the pivotal issues in this case. Upon Ahmed’s birth, South Western Sydney Area Health Service documents[5] disclose hospital staff expressing, “great concerns for maternal ability to perform mothercraft issues”. The nursing notes reveal the mother trying to give the baby cold formula and not being able to safely bathe the baby. As to the later concern is expressed about her inattention to the baby’s head. The nurses attempted unsuccessfully to explain to the mother routine child care and connect her to relevant community supports. The hospital considered notifying Ahmed to child welfare agencies as a child at risk, but decided against doing so because of the family support available to the mother and baby. At that time the paternal grandmother was living with the parties for the specific purpose of assisting the mother with their new baby. Although he only took a short period of leave following the baby’s birth, after he returned to work the father was home most afternoons and involved in the child’s care. The maternal grandmother was in regular contact with her daughter however because she worked full time she was not actively involved in the child’s care. From the hospitals notes[6] a number of factual disputes are clarified. The father and his mother alleged the mother was kept in hospital considerably longer than the one week identified. Although the father and his mother alleged she allowed the baby’s head to slip under the water the mother denied doing so. Yet there is reference to her inattention concerning the child’s head during bathing and his head rolling into the water. The risk to the child is obvious and the mother’s denials erroneous. Although her sister Taleya denied any difficulty at the hospital, the nursing notes show the mother was very distressed by her sister’s refusal to leave when visiting hours were over.
[5] Exhibit F
[6] Exhibit E
Upon the mother and baby’s discharge from hospital, the hospital arranged for regular, in some instances twice weekly, home visits by mothercraft nurses. The hospital notes reveal that during these visits Ahmed was observed to be developing well. Conversations with the mother showed that her mother-in-laws assistance with the child was significant and the paternal grandmother was obviously actively involved in the baby’s care. During visits the mother was unable to answer questions concerning the child’s feeding pattern and other routine matters. This is probably because the paternal grandmother was more intimately involved in Ahmed’s care than the mother was. By this I mean the maternal grandmother made the decisions concerning feeding, bathing and the like with the mother participating under her supervision.
In mid-August 2002 the parties and paternal grandmother were informed of a group for mothers with an intellectual disability run by Centacare and also the Fairfield Family Support Home Visiting Program. The mother alleges that the father resisted her participation in these programs, part of his pattern opposing her interaction with others. The father denies this and claims to have encouraged the mother to attend all recommended programs. Far from discouraging her from interacting with others, he says he actively encouraged her to accept home visits from relevant agencies. The nursing notes report, “Both grandmother and father very pleased to hear about these services. RH seemed unsure if she wanted to attend group. Referral made to Centacare first time mother’s group.” The mothercraft nurses made enquiries of the Fairfield Family Support Service, who advised that the mother was eligible for participation in a Karitane residential child care program. Again, the mother complains that the father did not support her participation in this program. Yet on 26 September 2002, it is the father and not the mother who telephoned seeking admission details to Karitane. He expressed concerns to the worker that the mother was refusing to go to Karitane and sought advice about how he could encourage her to go.
The father was very concerned about the mother’s capacity to care for Ahmed after his mother returned to Lebanon. Although there were strains in his relationships with the mother’s family when a childcare nurse suggested that the father ask the maternal grandmother to, “Stop work and care for RH and baby” he did so. The father supported this suggestion and for a period after the paternal grandmother returned to Lebanon, the maternal grandmother visited the mother and baby during the day at least each second day, and often more frequently. When Ms Sayed (not her real name) visited the mother in October 2002 she was informed, “Maternal grandmother now visiting every day or second day.” Ms Sayed observations of the mother’s interaction with the baby were positive and in her regular visits from late 2002 until mid-July 2003 one sees increasing comfort in the case worker concerning the mother’s interaction with the child and her ability to manage his care.
On a referral from Ms Sayed in late 2002, a specialist family support worker spoke with the mother concerning participation at Centacare’s program for young mother’s with an intellectual disability. The mother indicated that she did not wish to attend, nor did she want anyone to visit her at home. The father’s positive support for the mother’s participation in the Centacare young mother’s group and other assistance generally is apparent from the Department of Community Services file. His support commenced in the period immediately after the mother was discharged home with the baby and continued. Yet it was only with the insistence of the Department of Community Services that in late 2002 the mother agreed to attend Centacare.
On 18 December 2002 various community support agencies convened a case conference, the purpose of which was, “To determine the roles and responsibilities of agencies working with the family in order to ensure the safety and well-being of Ahmed”. Each of the parties attended, with other attendees being a nurse from Child and Family Health; a psychologist DADHC Fairfield team; a worker from Fairfield Parent Support Coordinator; a worker from Fairfield Parent’s Support, Arabic Family Support worker; a Child Protection Specialist, Fairfield CSC; the Manager, Casework, Fairfield CSC and a Child Protection Caseworker, Fairfield CSC. For this meeting the DADHC psychologist prepared a family assessment. The father reported to her “RH can bathe the baby properly, feed the baby throughout the day and dress the baby in appropriate clothing. Her parents (sic) skills have improved a lot. However, she still needs some supervision and help in bathing and feeding the baby”. Although the mother was able to bathe the baby, she lacked confidence in doing so and was particularly worried she may use water too hot for the baby. Accordingly the father continued to bathe Ahmed when he arrived home. Although the focus of the various agencies was enhancing the mother’s child care skills, the agencies also needed to consider the father’s parenting capacity. In the first year of the child’s life throughout the notes he is seen as an important support person for the mother and child. His role in the family is seen as positive and there are no concerns about his capacity to care for the child. All observations of the father’s parenting capacity are positive. Although a young first time parent I am satisfied the father did his level best to acquire sufficient parenting knowledge from his mother to competently attend to his sons needs. Although obviously anxious that he was attending to the baby appropriately his demonstrated sound parenting and homemaking ability.
Even though the mother started to attend Centacare and says that by February 2003 she was enjoying the group the mother’s attitude to attendance remained ambivalent. For example, on 10 February 2003, the mother repeatedly asked a DOC’s worker (referring to Centacare), “Do I have to go?” The father is reported as speaking with the mother and genuinely encouraging her to keep attending. Again the file reveals him speaking positively to the mother about the benefits of the Centacare program with a DOC’s worker on 23 February 2003. The mother’s support worker initially drove her to and from group. Once the mother had settled into the group reports of her ability to manage the child at the centre and during home visits are generally positive.
In about April 2003, the Department of Community Services decided to close their file, satisfied that with the father’s, maternal grandmother’s and Centacare’s support and the mother’s developing childcare skills, Ahmed was no longer at risk. When closing their files the DOC’s child protection caseworker contacted the father and invited him to discuss any future concerns with either the Department or Centacare.
After her support worker stopped driving the mother to Centacare’s mother’s group, the father drove her. This required him to take her and the baby to and from the centre most Mondays. The mother stopped attending Centacare in July 2003 by which time her mother was no longer visiting. The mother blames the father’s refusal to drive her for both scenarios. He denies this and says the mother lost interest in Centacare and he could not force her to attend. If the mother stopped attending because the father was unable to take time from work to drive her, this begs the question why couldn’t the mother catch a bus or train? It was not very far away. The mother was at great pains to refute any suggestion she is unable or unwilling to use public transport. If the mother’s reason for stopping Centacare is true and she was motivated to continue attending I am satisfied she would have requested transport assistance from her family, Centacare or used public transport. The father’s evidence is consistent with the mother’s initial refusal to attend and I prefer his father’s account about the mother’s decision to stop going to Centacare. Regrettably this casts serious doubts on the mother’s motivation and capacity to willingly persevere with necessary supports. It augurs poorly for her motivation to accept assistance she and Ahmed will need if he lives with her.
In early 2003 when the mother’s parenting ability appeared to be improving and she seemed well connected to Centacare the father’s willingness to have his mother in law at their home waned. It seems to me the father believes his wife’s mother seriously let them down through her failure to give the type of support his mother has given. It appears the father believes his mother-in-law and her family masked the mother’s intellectual disability and in effect lied to him about her capacity for marriage and motherhood. Whether based on cultural or religious factors, after the paternal grandmother returned to Lebanon, the father expected far greater assistance from his mother-in-law than she was prepared to give. Although worried about the mother and child, when the maternal grandmother made a lesser commitment than his mother had, the father made his displeasure plain and again tried to distance her. Thus, their poor relationship continued to deteriorate and it appears that by the middle of 2003 he was no longer willing to have her in their home. In this instance the father’s judgment failed him. The mother is shy and her family comprises her only social outlets. When the father placed the mother under pressure to exclude her mother, she lost her only external support. I have no doubt that Ahmed’s wellbeing was materially enhanced by the maternal grandmother’s regular visits and guidance. When the father brought this to an end, he placed the mother and child in a precarious situation. The maternal grandmother’s reaction to exclusion was extreme. She called police to the home and attempted, with their assistance, to force her daughter to allow her to enter. Scenes developed with the mother and other family members shouting from outside the block of units, demanding that police and the mother let her in. The maternal grandmother appears to have made no attempt to calmly discuss with the father and her daughter this impasse and try and re-establish relationships. She demonstrated that far from being a passive bystander, when the parties crossed her, the maternal grandmother responded in a heavy handed and inappropriate fashion. Her extreme reaction corroborates in a real way the father’s dilemma in trying to have the mother’s family in their lives in a balanced manner.
As agencies and other family support reduced, the mother’s demands on the father increased. Throughout the first part of 2003, the father continued his practice of returning home at lunchtime and whenever the mother telephoned him. As the year progressed, the mother’s calls for his assistance increased and eventually he was being called to come home two or three times during the day. On 25 August 2003, the father contacted Centacare explaining that he felt the mother was not coping with the baby and, “Was ringing him at work to ask him to come home to help her.” Consequently the father explained his employment was increasingly in jeopardy. The father asked the Centcare caseworker to provide a letter in support of an application to the Department of Immigration and Multicultural Affairs to have his mother return from Lebanon and assist with the child’s care. The Centacare worker spoke with the mother who supported this request. Thus, on 8 September 2003 she provided a letter of support for the paternal grandmother’s visa. The worker wrote, “She (the mother) has the care of their child Ahmed who is only 18 months old because of her disability she is finding it very hard to cope. JH, the father, is in danger of losing his employment because of his mother’s constant calls to him to come home and help her with the child. He is fearful that if he does not attend to her calls the child could be at risk of being removed. From her assessment, which I enclose, you will see she is classified as having only a mild intellectual disability, however, it is in the area of adaptive behaviour where RH has the most difficulty as her general adaptive level compared with other adults is low. She is often overwhelmed by tasks which require a multitude of responses in a very short time which is often the case where there is a young child involved.” And, ‘RH has undergone a parenting course through Centacare, however in the practical situation where everything is happening very fast her disability sabotages her attempts to cope. We would appreciate if you could give your sympathetic attention to this problem as RH is a loving mother who just cannot cope”.
The same Centacare worker prepared a further report dated
23 September 2004 specifically for these proceedings. In her subsequent report, she says the mother is ‘a loving and caring mother who was always very anxious that Ahmed be cared for adequately while she was attending group in the other room’. When there was any medication to [be] administered she was always very careful that the carer’s in the children’s room where aware of what medications to give and what times. The baby Ahmed was always clean and appeared well cared for as was RH herself. On the few occasions we visited the home it was always immaculate and RH was always able to tell me on the trip home from group what she had planned for the evening meal, in detail”. The Centacare worker comments that the mother is a sweet and gentle girl who appeared quite subservient and passive in her relationship with her husband. She says Ahmed and the mother were appropriately attached and prior to final separation, it is likely that Ahmed was bonded most closely with his mother. I accept this is probably so. Having recommended a live in assessment of the type offered at Montrose by the Department of Community Services, at odds with her earlier report, she said, “They are also able to put in intensive family support for RH, which given her obvious ability to care for the home and the child that I have observed, she would benefit from rather than the more cerebral input from a parenting course”. The Centacare worker did her best to reconcile her opinions expressed in September 2003 with those included in her September 2004 report. If the worker had resumed regular contact with the mother in the intervening period, it may be that her latter opinion could be understood as a consequence of observed improvements in the mother’s parenting capacity. However, she did not re-establish any involvement with the mother and it appears she reframed her opinion not having seen the mother for at least twelve months. With respect to her, her change of heart was not explained to my satisfaction. The gravamen of the first report is plainly that the worker does not believe the mother is able to cope with Ahmed’s care and that unless she has substantial family support the mother is unable to parent Ahmed. The latter revised opinion does not withstand critical scrutiny and as between the two reports I am satisfied greater weight should be attached to the first report and significantly less to the second. Particularly in so far as the second report addresses the mother’s parenting capacity.
On 11 December 2003 the father took Ahmed to Westmead Children’s Hospital for treatment for a burns injury to his hand which occurred while the child was at home with his mother. On assessment the injury is described as a “Deep burn to right index finger joint”. The injury did not require treatment. Presumably because it was potentially non-accidental or the result of inadequate care, the child was referred to the burns unit’s social worker. As indicated earlier in these reasons the hospital provided a letter supporting the father’s request to DIMIA for his mother’s application for a carer’s visa. In support of the application both parties claimed the mother was unable to care for Ahmed and impliedly that it was only a matter of time before something more serious than a burnt finger occurred. The mother claims she did not require the paternal grandmother’s assistance and wrote in support of the application under pressure from the father. Although he denies pressuring her, it seems likely the father did place the mother under some pressure to support this application. However the pressure need not have resulted in the mother making false claims that she needed help. Even now the mother presents her case on the basis she is unable to meet the child’s physical and emotional needs on her own. This is the reason her residence application is presented on the basis she will permanently reside with her mother. Basically so that the identified parenting deficits will be addressed by her mother and other family members taking a real role in Ahmeds care. The mother’s parenting skills do not appear to have deteriorated. At different periods she has been able to acknowledge she needs help. However because her motivation and insight is lacking, she claims assistance basically when it is forced on her but at other times generally rejects it. There is a discernable pattern of reluctant assistance being accepted when forced by DOCS, by a burns unit at a major hospital examining a potentially serious injury and finally during this case. The effect of this is that I accept the mother’s statement to DIMIA that without her mother in law’s full time assistance she was unable to meet Ahmed’s needs is a true reflection of the situation.
Once this case is over I have grave reservations the mother will accept external agency intervention with her care of the child. While she is likely to willingly accept her families assistance the real effect of this is that she will effectively hand significant parental authority to her mother. To a very great extent the probability is that the mother will require her mother to actually attend to Ahmed’s needs.
On 5 January 2004 the DOC’s file reveals that although the mother was encouraged to return to the Centacare first mother’s group, the mother declined to do so.
Ahmed did not attend a baby health clinic for his 15 month old check up in September 2003 or 18 month old check up in December 2003.
Although the mother says the fact the child was achieving his developmental milestones in accordance with his chronological age is positive proof of her parenting abilities I do not accept this necessarily follows. The reason for this is that so many other people were also involved. Particularly the father and Ahmed's grandmothers. With their support the mother learned to feed and dress Ahmed, take him for walks and put him to sleep. Although rudimentary her parenting skills were eventually sufficient to enable her to manage the child while he was a baby and until he became mobile. As the Centacare worker indicated the mother achieved a basic level of understanding. She could cope unless something went wrong or events happened more quickly than she could process. That she could not manage to meet the child’s physical needs is apparent from her numerous panicky calls to the father to return home during the day. It seems plain that whenever anything happened with Ahmed which she did not understand the mother panicked. Children need responsive parenting. This includes intuitive analysis of risks and skilled intervention when necessary. The mother’s disability and limited life experiences appear to have robbed her of the necessary parenting skills she needs to parent this child. The issue here is risk assessment and even although the child has not been seriously harmed my assessment is that alone with the mother the child has been at risk because of her inability to exercise sound parenting judgment and respond quickly. The combination of the mother’s lack of insight into this situation and inauspicious prognosis concerning improved future life skills means this situation is unlikely to improve. This is a factor which weighs heavily against her residence application or an order for joint parental responsibility.
Ahmed has reached a stage where he needs educational guidance and stimulation. He is discovering his world and needs parental input in order to make sense of it. Ahmed is a child with natural curiosity which must be responded to if he is to reach his full potential. If it has not started already his thousands of “why” questions must be answered. As the mother’s various intelligence and adaptive test results demonstrates she has at best a rudimentary capacity to contribute to her sons educational and intellectual needs. By the time Ahmed is eight in all likelihood his intellect and world knowledge will be outstripping the mother’s. If he looks to her for guidance and information about anything more than basic day to day functioning she will be unable to respond. Although this sounds harsh, sadly it is reality.
No similar issues arise with the father. He appears to be of at least average intellectual ability and is able to meet the child’s physical, psychological, emotional and intellectual needs, both in the short and long term. The father has a sound work ethic and basically lives a quiet, child focussed family life. It is submitted a residence order in the father’s favour is really an order in his mother’s favour. Comparatively, it is submitted a residence order in the mother’s favour gives the child greater time with his parents. Simply put, because the father works full time and must rely on his mother during the day the child has insufficient time with a parent. On the mother’s application the child will spend virtually all of his available time with a parent. Namely his mother during the working week and the father on weekends. In one sense this is correct. However, this submission ignores that when present the father is capable of meeting the full spectrum of this child’s needs. When he and Ahmed are together the child can enjoy a type of relationship unavailable with the mother. Only while with his father is Ahmed able to receive consistently authorative and capable parenting. Although this means he must also be cared for by his paternal grandmother, his relationship with her is strong and loving. Apart from English Language limitations, in her care Ahmed also receives authoritative and competent care which addresses all of his needs. On balance I am satisfied that between them the father and his mother are better able to provide consistently appropriately skilled care than the mother and her family. If for some reason something happened to the maternal grandmother the mother would have to seek out other supports in order to provide for Ahmed. If perchance something happened to the paternal grandmother the father is able to meet the child’s needs without reliance on others. Long term this places him in a superior position than the mother in terms of ensuring consistency in the child’s care. In coming to this view I have placed some weight on the mother’s alternate proposal that she has weekend contact so that the child can see his maternal relatives. The gravamen of the submission is that the other than her mother, all members of the mother’s family appear to have full time work. So that Ahmed can spend time with his aunties and uncles it is said the child should be with the mother during part of each weekend. It follows these adult relatives cannot be relied on during the working week to assist the mother with Ahmed’s care. Although she denied it, I am satisfied the maternal grandmother spends considerable time at Wasim’s shop and is unlikely to be as consistently available as the father’s mother has shown she is willing to be. These matters weigh in favour of the father’s residence application.
It seems to me that changing residence does not address this child’s long terms needs. Ahmed appears to have adapted well to his change in primary carer. No doubt this is because the child had a strong attachment to his father and a good relationship with his paternal grandmother when the parties finally separated. Although prior to separation the father was not as extensively in the child’s presence as the mother was, he was a significant daily presence in the child’s life from his birth. The father’s attendances at his Mosque and language classes did not interrupt the child forming a close bond and loving relationship with him. While he was at home the father was a very hands on parent and actively involved in the child’s care. This involvement established a sound basis for a strong attachment between father and son. Since separation this relationship has continued unabated and the probability is it has strengthened. This is because the father is the only person who has been continually part of the child’s life. Day in and day out, since his birth, Ahmed has been able to rely on contact with his father. It seems highly likely that although his mother and paternal grandmother between them has been this child’s primary carers, because of his consistent loving relationship with his father, the father’s daily involvement in the child’s life is fundamental to the child’s sense of well being. At this stage of his life it is highly likely Ahmed would find separation from his father and paternal grandmother traumatic. One would have to be concerned this type of trauma may in the long term be emotionally harmful. Unless there was good reason associated with the child’s welfare to force this trauma on the child, I am persuaded it should be avoided.
Other relevant matters
Since separation, the parties have engaged in a highly unfortunate tit for tat round of investigations and allegations concerning Ahmed’s care. Ahmed is routinely taken to hospitals and doctors for examination even though there is no good reason for concern. Each party appears motivated to establish that any knock or scratch, bump or bruise on this toddler results from neglect or mistreatment by the other. As each is aware the other behaves in this fashion, the attendance is also undertaken as a protection against ill-founded child abuse allegations.
The father took the child to Westmead Hospital on 18 October 2004,
20 October 2004, 12 December 2004, 31 December 2004, 4 January 2005, 13 February 2005, 6 March 2005 and 24 April 2005. The father uses hospital emergency department for routine medical checkups. Each visit follows contact and involved relatively insignificant incidents. These included that the child had a rash on his cheeks, had been vomiting and a graze on his shin. On none of these occasions was Ahmed admitted to hospital and there is no evidence that the child required medical or hospital assistance.
Dr Hrouda explained that since contact commenced the mother has brought the child to him at the commencement of contact, usually accompanied by the maternal grandmother. These visits include attendances on 8 October 2004, 14 November 2004, 2 January 2005,
1 April 2005, 29 April 2005, and 17 June 2005. The attendances involved multiple complaints by the mother and grandmother, however on each occasion the doctor observed Ahmed was cheerful and generally well. On one occasion he had a cold and on another a small blister apparently caused by a burn to his middle finger. On no occasion did the child require medical intervention. As to the burn, the mother and her sister Taleya took the child to Punchbowl police station. The police summarised the incident thus, “It appeared to police that Ahmed is very inquisitive and it is a high possibility that he has touched some sort of hot object and sustained the injury. Taleya does not believe that JH has caused the injury, but wanted to report the injury to police in the event that JH accuses his ex-mother.”
On 5 November 2004 the father delivered Ahmed to the mother for contact. Contact changeover is at Granville Police Station. The events that transpired are summarised in the police records. The COPS entry reveals, “The mother inspected the victim upon advice from the solicitor. The victim found two small scratch marks about one centimetre in length. There was redness around the scratch mark and also small pimples. The marks were about three centimetres around the victim’s lower neck line. The mother put the allegation to police that the father had been abusing the victim … Upon police inspecting the marks on the child’s back, the scratch marks were consistent with the victim scratching his back. The victim’s fingernails were long and he could easily reach to his back. The victim seemed to be in high spirits and was playing with toys at the police station. Police took down details of the mother and father, victim and solicitor that is involved. Police advised the mother to take the victim to the doctor and have the marks on his back inspected. The mother agreed and left the police station ….” The mother took Ahmed to Dr Hrouda who prescribed Diprosone, a cream for rashes. Dr Hrouda advised the mother Ahmed seemed to have scratched his rash. The mother took Ahmed back to the police station and after speaking to an officer, police summarised their involvement thus, “Police do not believe that the victim has been abused by the father due to the doctor’s results. The marks on the victim’s back does look like a rash of some sort and not like physical abuse by the father. The allegations of child abuse may be instigated from the solicitor to gain full custody of the victim.” Probably to protect themselves from allegations they failed to act appropriately, police notified the mother’s allegations to the Department of Community Services.
During the hearing I probably said all that needs to be said about the inappropriateness of unnecessary medical examinations. The mother’s involvement of police in investigating a scratch shows real lack of judgment on her part as well as those of her family involved. In order to try and avoid repeated unnecessary medical examinations, the father will be ordered to nominate a medical centre or medical practitioner to whom both parties shall consult on Ahmed’s medical needs. Only in an emergency is he to be taken elsewhere. This will ensure the child’s receives consistent and appropriate medical care. If for example one of the parties presents the child for unnecessary examinations this can be identified and stopped.
Structure of the orders
Ahmed has lived all of his life with his father. In his father’s care the child is healthy and settled and is meeting his developmental milestones without difficulty. Throughout Ahmed’s life the father has maintained a strong commitment to his son’s welfare and unaided, is able to meet the child’s physical, emotional and intellectual needs. Because he works, the father relies on his mother for in-home care. The child is attached to his paternal grandmother and between them the father and his mother provide a safe and settled family life in which this child can continue to thrive. Ahmed has experienced separation from his mother and ordering a change in residence means he must again experience loss from those to whom he is now primarily and securely attached. Whilst reinstating the mother as the child’s primary carer means that the immediate loss Ahmed may feel at separation from his father and paternal grandmother is less than might otherwise be the case, the probability is that Ahmed would find separation traumatic which in the long term may well be emotionally damaging. The key advantage of changing residence is that Ahmed will have the opportunity to live with his mother and maternal grandmother, both of whom love him dearly. This is counter balanced by the mother’s limitations meeting the child’s long term needs and disruption to a residence arrangement that long term ensures those needs will be met.
Since he has had Ahmed’s care, the father has ensured the mother has had contact in accordance with operative orders. I am comfortably satisfied the father is committed to ensuring the mother maintains an appropriate relationship with Ahmed and that the court’s orders for contact in her favour will be complied with. Not only is his track record of compliance exemplary, but he and his mother have persevered with contact in the face of unpleasantness directed their way from members of the mother’s immediate family. In the same circumstances, other less motivated parents may have found continuing contact too difficult.
Structuring contact arrangements for a child who has many important developmental milestones ahead is quite difficult. This difficulty is heightened by the practical limitations of the mother’s parenting capacity. Unnecessarily limited contact deprives the child and parent of the opportunity to develop and enjoy their relationship. Unless contact develops at a pace consistent with the child’s age and maturity the child/parent relationship may be undermined. Through regular contact Ahmed can have the opportunity to experience his mother’s parenting and for her to exercise her parental authority to the best of her ability. Ahmed is at an age where he is inquisitive and probably easily distracted. Unlike a baby who is easily contained, he is active and has little appreciation of danger. For the next couple of years, Ahmed requires close adult supervision, so that he is protected from risks associated with a child’s natural inquisitiveness. Children learn about danger by parental guidance and an element of trial and error. By this I mean experiencing the consequences of ignoring parental instruction. The key is a balance between instruction, containment, but not seclusion and an adult’s quick and effective intervention. It is in this area that the mother’s parenting skills are insufficient. As I have already indicated her intuitive responsiveness is compromised and whilst an active toddler and still reasonably unguarded, Ahmed needs his mother’s and another adult’s presence during contact. I do not know whether the parties intend Ahmed to attend preschool. As an only child, the advantages of preschool at least for a reasonable period before he starts school are obvious. Preschool will give him the opportunity to converse substantially in English, to enjoy contact with other children and structured learning prior to starting school. Whether at preschool or school, by the time Ahmed has finished kindergarten he is likely to have a much better understanding of safety, self help and the role adults play in his supervision will accordingly change somewhat. It seems to me that by the time he turns 7 years of age, he will have sufficient maturity that his mother’s contact need no longer be facilitated by other adults during the day. Because the mother says she will reside with her mother, these orders provide for overnight contact to take place at her mother’s home or under the supervision of another agreed adult.
Although the father opposes overnight contact I am satisfied overnight contact should commence immediately. On the conditions provided in these orders, risk issues are adequately addressed. Ahmed enjoys his mother’s company and is old enough to understand that periods of overnight contact with her do not mean prolonged separation from his father and paternal grandmother. Relatively quickly, overnight contact will be routinely enjoyable. Thereafter contact grows in accordance with my assessment of the child’s ability to adapt to longer contact with his mother without introducing a disorganised contact schedule.
Until Ahmed starts school, contact commences on Sundays, balancing the father’s availability to enjoy leisure time with the child and the mother’s desire to enable the child to spend time with members of her family. Although the mother is available for contact seven days a week, her family’s availability is limited. I consider it in Ahmed’s interest that he has an opportunity to enjoy his extended maternal family and consequently there needs to be contact for part of the weekend. Eventually, when Ahmed has started school, weekend contact will start after school Friday. This will continue provided the mother reliably collects Ahmed from school on Friday afternoons. My intention is to give her the opportunity to meet Ahmed’s school friends and teachers and have a greater appreciation of his school life than might otherwise be the case. As a precaution, in the event the mother is late collecting the child, her entitlement to collect Ahmed from school will be lost if the child is not collected on time. Because contact will have occurred on a weekly basis, alternate weekend contact will be supplemented by contact one afternoon each week.
Longer periods of holiday contact will be delayed until Ahmed starts school. By then the child should be ready for longer periods and will be old enough to enjoy this time with his mother. I have contemplated half school holiday contact, but am concerned that for periods longer than one week the mother is unlikely to adequately meet Ahmed’s needs. For this reason holiday periods are broken up and balanced giving the child and mother the opportunity to enjoy each other’s company during school holidays without placing the mother and child’s relationship under pressure. There is a possibility the father’s employers may require him to take his recreation leave at specific times. This is a not uncommon practice in his industry. If this occurs, and coincides with periods Ahmed would otherwise be with his mother, the father may suspend the mother’s contact upon condition that the time forgone is made up. So that make up contact does not linger the mother must take the lost contact within three months of its suspension. As the duration of contact is important contact periods may not be added together. It is important for this child’s relationship with his father that they also have a proper opportunity to share holidays and leisure time.
Ahmed will have the opportunity to enjoy special occasions with both parents. Both parents are Lebanese Muslim and celebrate the same cultural and religious events. At least in regards to cultural and religious identity the parties adopt the same approach and each will ensure Ahmed has a full appreciation of his Lebanese Muslim identity. Eid and the end of Haj are particularly important days and both parties shall have the opportunity to share these with Ahmed. It is the courts understanding Eid lasts over two days with both days equally significant. To avoid confusion the father will always have the first day of Eid and the mother the second. The end of Haj will alternate annually. Although neither party made an issue about it, Mother’s Day will be spent with the mother and Father’s Day with the father. This accords with community practice and means Ahmed will share with his parents days his peers will share with theirs.
To date, contact changeover has taken place at police stations. It appears that this approach was taken to limit the opportunity for unpleasantness during changeover. Whilst this has had a tempering effect, it has also resulted in unnecessary complaint to police. Contact supervision is not police responsibility. Because contact changeover has taken place at a police station the mother and her relatives have complained about the father’s care of the child to police, the consequence of which has been unnecessary examination by police of the child and his situation. Fortunately Ahmed is too young to appreciate how inappropriate this has been. As he gets older he will better understand the significance of police intervention in changeover. Potentially he will receive the unfortunate message that police are critical of his father, an outcome which is potentially damaging to the child’s regard for his father. The father pressed strongly for contact changeover to take place at Central West Contact Service. This is feasible only if contact changeover takes place during the centre’s opening hours. Because I am satisfied that contact should commence on Sunday afternoons but conclude during the week, the centre is available at the beginning of contact, but not at its conclusion. Provided contact changeover involves the parties and their mother’s, but nobody else, changeover should proceed more smoothly than it has. Although it is inconvenient to all parties involved, there is a benefit for Ahmed and the parties in a period of supervised contact changeover at Central West Contact Service. This is because skilled supervisors can educate the parties and their mother’s about the best manner for managing changeover. After six months of regular changeover at the contact service, the parties and their mothers should be sufficiently used to easy contact changeover that they can continue without the centre’s input. All other contact shall take place in a public environment, my hope being potential public scrutiny maximises the opportunity for appropriate changeover.
Included in the orders are a series of specific issues orders and injunctions which are designed to ensure the parties have necessary information concerning their son and each of the parties is anxious the other may attempt to remove Ahmed from Australia surreptitiously. Although I consider this unlikely, each party will rest more comfortably with appropriate injunctions.
Finally, I have needed to consider whether the parties should have joint long term responsibility for the child. This is a difficult issue. This is because each of the parties loves Ahmed and has a great deal to contribute to his identity and wellbeing. Ordinarily my approach is in favour of orders for joint long term parental responsibility. This is because the types of decisions encompassed in long term parental responsibility are major decisions to which both parents are entitled to contribute. These styles of decisions include where the child resides, the child’s education, surgery and major medical decisions. The mother’s capacity to analyse the nuances of various alternatives is comprised by her intellectual disability. I have real reservations about her capacity to quickly decide matters which need fast resolution. Also, that immediate members of her family may interfere in her decisions. However I do not consider the mother’s input should be excluded. The approach I have taken is to require the father to consult with the mother and to genuinely take her views into account. If it becomes apparent he pays lip service to the mother’s opinions and her opinions appear properly child focussed this issue can be the subject of mediation and if necessary further consideration.
In order to ensure the father must consider the mother’s views concerning the child’s living arrangements the parties are required to keep each other appraised of the child’s address.
For these reasons I am satisfied the parenting orders made at the start of this judgment are in the child’s best interests.
Relevant law – property
The approach to the determination of an application under section 79 is well established by authority: See In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-593. The process involves a four part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Biltoft and Biltoft (1995) FLC 92-614. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant; any other order made under the Act affecting a party or child; and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or might be liable to provide in the future for a child to the marriage.
Finally in determining what order should be made under s.79, the court must be satisfied in all the circumstances that it is just and equitable to so order: s.79(2). It is the justice and equity of the actual orders that the court must consider: See Russell v Russell (1999) FLC 92-877.
The proper treatment of paid legal fees was recently considered by the Full Court in Chorn & Hopkins (2004) FLC 93-204. Writing ex judicially Justice Boland[7] said “The principles which emerge from the Full Court’s review of previous decisions can be summarised as follows:
·Monies reasonably disposed by a party in the conduct of their post-separation lives should not usually be added back.
·The treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial judge.
·In determining how to exercise that discretion, regard should be had to the source of funds.
·If the funds used existed at separation and are such that both parties can be seen as having an interest in them (on account, of contributions) then such funds should be added back as a notional asset of the party, who has had the benefit of them.
·If the funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example,: by way of gift or inheritance), they would generally not be notionally added back as a notional asset; nor would any borrowing undertaken by a party post-separation for payment of fees be taken into account as a liability in the calculation of the net property of the parties.
·Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
·Outstanding legal fees themselves are generally not taken into account as a liability.
·If in the exercise of discretion it is determined that legal fees already paid should be taken into account as notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.”
[7] 9th Australian Family Lawyers’ Conference, Sabah 11-13 June 2005 “Trends in the Full Court: Recent cases”
The key factors that appear to have general application are the emphasis on the source of the funds. That is were the funds received through one parties efforts alone or in his or her own right, whether the funds disposed of came from assets in which both parties had an interest and whether the funds were acquired pre or post separation. Underpinning all of this is the general notion that paying legal fees is reasonable.
Assets and liabilities as at the date of hearing
When the parties separated they had assets, liabilities and financial resources identified in their joint application for orders filed at Blacktown Local Court. This means, they jointly owned the father’s 1989 Holden Commodore worth $2,000, household furniture and personal effects worth $5,000, $9,000 in savings with the Commonwealth Bank account number 10110656, $3,200 in Commonwealth Bank account 10044219 and the mother’s jewellery worth approximately $1,000. Since separation neither party has acquired additional assets. The father retained his car, the parties’ savings, and household goods. There is a dispute concerning how much of her jewellery the mother received. Although no reference was made to it, as at 30 June 2004 the father had superannuation worth $5,278.
At the date of hearing the parties assets, liabilities and financial resources comprised the following:
·Father’s Commonwealth Bank account $243.
·Father’s savings $1,225.
·Father’s 1989 Commodore $1,500.
·Household furnishings $4,000.
·Notional add back father’s paid legal fees $10,000
Total non superannuation assets - $16,968.
·Superannuation Astron Workforce Super (H) $5,278. Although it is likely this fund has increased slightly in value during the last twelve months there is no evidence concerning its increased value. I infer the father’s superannuation only comprises compulsory statutory minimum payments. Considering the number of years it has taken to achieve a small interest, the increased value is de minimus.
There are no matrimonial liabilities or financial resources.
There are a number of findings which require explanation. Firstly, the father’s car and personalty, although not formally valued are consistent with representations both parties made in their initial application for consent property orders, reduced slightly by the effluxion of time and wear and tear. Even if this were not the case, these values are the best evidence the court has and are evidence as admissions the father makes against his interest. The father’s superannuation interest is similarly an admission against interest.
Since separation, the father has paid $10,000 for legal fees in these proceedings. The father’s counsel submitted the court would reject the mother’s claim these monies should be notionally added back. Simply put, the father’s counsel argued the court has discretion in the manner with which this issue is dealt with which should be exercised against adding back. Whilst I accept this is a discretionary matter, the exercise of discretion is not at large and the court must follow the Full Court’s recent decision in Chorn and Hopkins. The source of funds the father used to pay his legal fees is savings jointly acquired during the marriage. Both parties contributed to the acquisition of this fund, the father through paid employment and the mother via her disability benefit. The father said the court would take into account the mother has maintained family law proceedings which are doomed to failure and consequently the father has been put to unnecessary legal expense. If this is so, it is a matter to be addressed by an application that the mother pays the father’s costs and is not relevant to the quantification of the asset pool. Even though the father is a person of modest means (as is the mother) this does not enable him to resist the proper application of the principles in Chorn and Hopkins. Accordingly, the $10,000 the father sourced from joint matrimonial funds to pay legal fees is notionally added into the asset pool and treated as his asset.
The father claims a $14,000 debt borrowed to pay legal fees. As the Full Court made clear in Chorn and Hopkins this is not an issue ordinarily taken into account in quantifying the net asset pool and it accordingly excluded.
Finally, the parties do not agree about the value of the mother’s jewellery, nor its location. The mother alleges her jewellery is worth $2,000, whereas the father says it is worth $1,000. There is virtually no evidence which enables me to determine the jewellery’s value, nor who has it. I do not know how much was paid for particular pieces, when these were acquired or what it is alleged the collection comprises. It appears equally likely the jewellery is with the mother as with the father. In those circumstances I have not included the jewellery as an asset.
Section 79(4) contributions and other factors
At the commencement of cohabitation neither party had assets or liabilities of value. All assets accrued subsequent to cohabitation and prior to separation. During cohabitation the mother received a disability benefit which the parties saved. The father worked full time and his income paid their rent and all other day to day living expenses. The father’s income exceeded the mother’s disability benefit, probably in much the same proportion as his income presently exceeds hers.
I infer this from the facts that the mother continues to receive a disability benefit and the father continues in employment of the same type as he engaged in during cohabitation. Consequently, I am satisfied the father’s financial contribution exceeds the mothers.
Neither party claims s.79(4)(b) contributions.
The mother’s contribution as a home maker and parent is one of the important features of this case. From the commencement of cohabitation and until separation the mother spent her time managing the home and caring for Ahmed. To these roles she gave her all. The mother was strongly motivated to maintain a well-ordered home and cared for Ahmed to the best of her ability. Although she needed support from the father and his mother when she was in Australia the mother maintained a clean and tidy house, prepared meals and while the father was at work was primarily responsible for their son’s care. While I accept the mother needed the father’s guidance in aspects of housekeeping, I do not accept the mother spent her days watching television leaving him to perform virtually all necessary household tasks when he arrived home for work. During cohabitation, while I accept the father did the grocery shopping (usually with the mother), some washing and cooking and hanging out clothes, his share of these tasks was less than the mother’s. Concerning Ahmed’s care, the father’s involvement in the child’s care complimented the mother’s and his mother’s. It centred on weekends, after working hours and during working days when the mother called him home. Comparatively the mother’s homemaker and parent contribution during cohabitation exceeded the father’s. Since separation the mother’s parenting contribution has continued during contact. As Ahmed lives with the father it is plain that post separation his parenting contribution exceeds the mother’s. On balance the mother’s homemaker and parenting contribution slightly exceeds the fathers.
The orders I propose will not affect the earning capacity of either party.
The mother has not paid child support.
Having regard to all of the contributions within the meaning of s.79(4)(a), (b) and (c) from the date of cohabitation to the date of the hearing and the other factors to which I have made reference expressed as a percentage of the net value of their assets, these factors favour the father 55% compared to the mother’s.45%.
Section 75(2) factors
The parties are young and healthy. Each has those assets identified earlier in my reasons and income set out in their respective financial statements. The father has a total weekly income of approximately $824, comprising $700 salary and $124 family tax benefit. After weekly expenses of $200 rent, $150 tax and $25 car expenses he has approximately $450 per week with which to meet his, Ahmed’s and his mother’s living expenses. Since separation he has been unable to acquire assets and his savings have reduced. Plainly, the father requires every cent he receives in order to meet essential day to day living expenses. The father’s financial future is difficult and it is likely that he will continue to perform modestly paid labouring and carpentry work indefinitely. As a consequence of the parenting orders, he will be responsible for Ahmed’s care, a factor which as Clauson makes clear, weighs heavily in favour of an adjustment to him. Although he has family assistance, in the guise of his mother, he carries significantly greater expense day to day providing for his son and son’s carer than the mother incurs.
The mother has no qualifications which equip her for paid employment. The combined effect of her intellectual disability and family expectation that she will not have paid work indicates that it is highly unlikely the mother will ever have paid employment. Reality suggests the mother will forever be reliant on her disability benefit as her income. Presently she receives $200 each week, which income is securely hers probably for life. The mother’s expenses are said to be $527 per week. During cross-examination she conceded $217 of her average weekly expenses actually related to her mother and their inclusion in her financial statement was misleading. The mother contributes $45 per week to her mother’s Department of Housing rental and otherwise says she has weekly expenses and excluding her mother’s expenses, totalling $265. These expenses include Ahmed’s expenses during contact. While these expenses are moderately exaggerated, the reality is that the mother needs every cent she receives from her disability benefit. Even with her mother’s accommodation support, the mother meets her essential living expenses from her disability benefit with some difficulty.
To date, the mother has paid no child support and it is unlikely she will ever do so. If child support is paid at best the father can expect to receive the statutory minimum. The father’s financial future by virtue of his care for Ahmed without financial contribution to the child’s costs from the mother weighs heavily in the father’s favour. This is notwithstanding the mother’s reliance on social welfare and that including superannuation, an almost certainty she will never acquire assets of value. Although the mother will incur costs associated with Ahmeds care during contact there is no comparison to those the father will carry. Section 75(2)(o) factors weigh heavily in the father’s favour. Particularly his mother’s continuing contribution towards Ahmeds care and the costs to the father providing for her support. Although it probably understates the situation the paternal grandmother’s average weekly expenses must be at least $100. This means that until she is eligible for social welfare support, the father pays a minimum of $5,200 annually providing for the child’s in home care. As she must wait two years from her arrival date before becoming eligible to apply for income support, this means the father will spend a minimum of $10,200 supporting his mother. As the sole reason he incurs this expense relates to the child’s care, this is a factor which warrants adjustment in his favour.
Given the modest asset pool, the totality of these factors warrants an adjustment of 45 per cent in the father’s favour. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75. See Tomasetti (2000) FLC 93-023. Any lesser adjustment, given the size of the asset pool would be notional.
Section 79(2) is this outcome just and equitable?
Because the court must consider the actual orders, not just the percentage distribution under s.79(2) justice and equity in cases like this requires that the court stands back and looks carefully at the outcome of the s.79(4) and s.75(2) process. It is at this stage that the court considers the actual structure of the orders.
I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction that an outcome which gives the available net assets to the father is just and equitable. Simply put, these include during this short marriage the father made slightly greater contributions than the mother and the future financial consequences of Ahmed’s care. As a modest wage earner and with little prospect that he will ever receive child support, not withstanding the mother’s long term reliance on a disability benefit and the financial consequences to her of this reliance, there must be a sizeable adjustment in the father’s favour. If the parties had substantially greater assets than I have found them to own, the adjustment in the father’s favour would not have been as great. However, the actual effect of these orders is that the father receives only a very small property entitlement a portion of which is tied up in superannuation. In dollar terms his s.75(2) adjustment is about $10,000 an amount he expends supporting his mother. The size of the adjustment truly bears no relation to the costs he will actually incur supporting Ahmed without contribution from the mother. Both parties are in a parlous financial situation. Although it is an unusual outcome, ordering the father to pay anything to the mother would be harsh and unjust. From the mother’s perspective this may appear inequitable. However hopefully when she stands back and considers the expenses the father will carry compared to those she incurs during contact, this is the proper outcome.
As these findings result in no adjustment to existing property entitlements, the mother’s s.79 application will be dismissed.
Relevant law – spouse maintenance
The mother makes an application for spouse maintenance. In Bevan and Bevan (1995) FLC 92-600 the Full Court of the Family Court identified the process for assessing a claim for spouse maintenance.
It said[8] this requires:
"1. a threshold finding under s72;
[8] at 81,981-82,982
2. consideration of s74 and s75(2);
3. no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
4. discretion exercised in accordance with the provisions of s74, with reasonableness in the circumstances" as the guiding principle."
A claim for spouse maintenance that is heard at the same time as an application for property adjustment adds an extra step to the process. The sequence of determining the applications is important and the property application must be determined before the spouse maintenance claim is considered. This is to ensure that the terms of any order made in the property claim are considered in the spouse maintenance application.
By virtue of the mother’s reliance on a disability benefit and the agreed position she is unable to work as a consequence of her intellectual disability, the mother establishes a threshold entitlement for spouse maintenance. The issue in this case is the extent of her need for support and the father’s capacity to pay her. I must disregard the mother’s disability benefit when determining her income. This means the mother has no income and no earning capacity. Excluding her mother’s expenses and expenses incurred for Ahmed the mother has average weekly expenses in the vicinity of $200. Although she claims greater expenses, in the modest circumstances of this case I do not accept her reasonable expenses are greater than her present income. Basically the mother has demonstrated a capacity to live on her disability benefit, which is the proper measure of her expenses.
The mother’s counsel properly criticised the father for his failure to adequately complete his financial statement and address in chief his average weekly expenses. Somewhat glibly his counsel submitted this paucity of evidence is of no consequence and asked the court to infer the father could not afford to pay spouse maintenance. I do not know if the decision not to disclose the father’s average weekly expenses was his or an oversight of those representing him. Given the father’s keen interest in this case, it seems likely responsibility for the omission rests with his advisers. Had the mother’s residence application succeeded it is unlikely I could have drawn the inference his counsel contends for. However because the father has his mother and child to support from his modest income I am satisfied I can infer he has no capacity to pay spouse maintenance. In fairness to her, the mother’s counsel effectively conceded this point.
Thus although the mother has established a threshold entitlement to spouse maintenance because the father has no capacity to pay it, her maintenance application will be dismissed.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 3 November 2005
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