Juni and Juni (No 2)

FAMILY COURT OF AUSTRALIA

JUNI & JUNI (NO 2)

[2010] FamCA 1113

FAMILY LAW - PARENTING - Where the child was brought up in a religious community - where the mother has now left the religious community - where the child retains the strong views of the religious community - whether the religious community was a destructive cult or an alternate lifestyle - allegations of violence towards women within the community - status of women within the community - husband’s ability to physically discipline his wife according to Scripture - where there were difficulties with educational standards achieved through home schooling - circumstances in which the child was interviewed by the judge - determination of whether child remaining in the religious community is in the child’s best interests

Family Law Act 1975 (Cth)

APPLICANT:

Ms Juni

RESPONDENT:

Mr Juni

INDEPENDENT CHILDREN’S LAWYER:

Patricia Cope

FILE NUMBER:

CSC

805

2009

DATE DELIVERED:

7 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Cairns

JUDGMENT OF:

Watts J

HEARING DATE:

5 – 6 August 2010; 1 – 2 November 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Wilson

SOLICITOR FOR THE APPLICANT:

AMR Legal

COUNSEL FOR THE RESPONDENT:

Ms Benson

SOLICITOR FOR THE RESPONDENT:

Nothern Beaches Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Victoire

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Cope Family Law

Orders

Subject to these orders, the father will have sole parental responsibility for Child A born … August 1996 (“the child”).
Day to day decisions regarding the child are the responsibility of the parent who has care of the child at that time.
The father give notice to the mother in writing or by email of any major decision he intends to make about the child’s education or medical care at least 21 days prior to making such decisions, and before making the decision, consider any view expressed by the mother in writing or by email received within 21 days of the notice given by the father to the mother.
The child will live with the father.
The father will communicate with the mother in writing on any occasion when there is any significant development in relation to the child’s health, education, religion and any other long term issues, advising her about those developments.
The parents be restrained and an injunction issue restraining the parents from relocating the child from the North Queensland area, and to avoid any doubt, this order does not apply to prevent a parent from taking the child away from the North Queensland area during periods which fall during weekends, school holidays or by agreement between the parents in writing.
The child will spend time with and communicate with the mother as follows:-
7.1.Four days each fortnight from after school Thursday to the commencement of school on Monday to be extended by 24 hours should there be a public holiday or pupil free day;
7.2.For one half of all school holidays with the father to have the first half in even numbered years and the mother to have the first half in odd numbered years and alternating;
7.3.By phone on at least one occasion each week;
7.4.At such further or other times as agreed between the parties.
Changeovers will take place at school where possible and failing that at the McDonald’s in … North Queensland.
Each parent is restrained and an injunction issue restraining each parent from denigrating the other parent and the child’s religious beliefs or extended family members.
Each parent is restrained and an injunction issue restraining each parent from allowing the child to remain in the presence of third persons who are denigrating the other parent and the child’s religious beliefs or extended family members.
Both parents will sign all documents and do all acts and things necessary and equally pay any cost involved necessary to ensure that the child attends at either the N State School or E College as from the commencement of the academic year in 2011. The parties to communicate with one another about the school the child is to attend and failing agreement, after consultation with the mother, the father will decide which of the two schools the child shall attend.
Both parents will sign all such documents and do all such acts and things as are necessary to enroll the child in a course of protective behaviours with a psychologist as agreed between the parties and failing agreement as recommended by the Independent Children's Lawyer.
Each parent will keep the other advised of their home address, email address, landline and mobile telephone numbers and shall advise each other of any change forthwith upon that change.
These orders confirm the authority of both parents to communicate with and obtain information and documents from the child’s school and treating health professionals.
Each parent will provide to the other parent no less than fourteen (14) days written notice of any intended interstate travel by the child and will provide the other parent with details of any proposed departure and return dates for the child.
Each parent will complete a Focus on Kids course within six months of the date of these orders and provide a copy of the certificate of completion to the other parent.
The father is to organise for the child to speak to the leader about her interpretation of the Bible in relation to a husband being able to physically discipline his wife, upon the understanding that the leader will convey to the child the interpretation of scripture which he gave to the court, namely that the Bible does not authorise a husband to physically discipline his wife.
For a period of 12 months and pursuant to s 65L Family Law Act, compliance with these orders, as far as practicable, be supervised by a family consultant who shall give such assistance as is reasonably requested by a party to carry out these orders.
Liberty to apply to either of the parties or the Independent Children's Lawyer on one week’s written notice in relation to any matter arising out of the supervision referred to in order 18.
The Independent Children's Lawyer be discharged when the supervision order expires.
Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the children and that until further order that Judge be Justice Watts, if he is reasonably available.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Juni & Juni (No. 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 805 of 2009

MS JUNI

Applicant

and

MR JUNI

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Child A (“the child”), is 14 years old and under current interim orders, lives on a week about basis with her mother in North Queensland and with her father in a religious community (“the Community”). This Community is variously referred to in affidavits as a ‘commune’ or a ‘cult’. The nature of the Community was an issue in the proceedings.
It was part of the mother’s case that the Community that she had been a part of for a significant portion of her life was a destructive cult. It was the father’s case that it was a benign community. It will not be necessary in the context of this hearing to place any type of label on the Community.
The more important question is whether or not continuing to place the child with the Community is an unacceptable risk to her.
The mother asserts that there are a number of unacceptable risks to the child if she remains living in the Community. The most significant of these are:
4.1.Exposure to emotional and physical violence;
4.2.Teachings that do not value the worth of the individual, particularly if that individual is a woman;
4.3.Teachings which subrogate the role of a woman which might lead to a early marriage; submission to a husband including agreeing that you are subject to your husband’s discipline (including physical discipline);
4.4.Lack of nutrition due to access to poor quality food and inadequate access to healthcare;
4.5.Lack of appropriate facilities; and
4.6.Difficulties in obtaining an appropriate educational standard, including restricted access to tertiary education.
The mother has left the Community and now resides with her de facto partner. The mother and father have nine children in total, six of which suffer from intellectual disabilities. Four of the children with intellectual disabilities live with the mother. The subject child is the only child currently spending part of the time with her father in the Community.
The father fears for the child’s spirituality if she lives with the mother, and is apprehensive about what he believes is the mother’s sinful lifestyle.
The child believes the mother is living in sin. She has expressed different views at different times about where she wishes to live. Presently, her first expressed preference is not to leave the Community and to live with her father. Her second preference is to live with her mother. She has made it clear she would like the week about arrangement to cease.

APPLICATIONS

Mother

At the commencement of the hearing, the mother sought following orders:
1.That the Child [A] born … August 1996 (“the child”) live with the mother.
2.That the mother have sole parental responsibility for the said child in relation to all matters, but in particular in relation to the child’s education.
3.That the father spend time with the child as agreed between the parties or as ordered by this Honourable Court, and that such time be outside the Community or, if within the Community, that such time with the child not be overnight time.
4.That the father be restrained from denigrating:
a.the mother;
b.The mother’s de facto partner;
c.and member of the mother’s family,
to the child, or within the child’s hearing; or from allowing any other person to do so.
5.That the father be restrained from physically disciplining the child, or from allowing any other person to do so.
6.That the father ensure that the child not be exposed to violence.
7.Such further Order as this Honourable Court thinks fit.
During final submissions, the mother formally sought the following orders:
1.That the Child [A] born on … August 1996 live with the mother.
2.That the mother have sole parental responsibility for the said child.
3.That the father spend time with the child:
(a)From after school Thursday until the commencement of school Monday in each alternate week;
(b)For the first half of all short school holidays in 2010 and each alternate year thereafter;
(c)For the second half of all short school holidays in 2011 and each alternate year thereafter;
(d)For the first four weeks of the long summer school holiday period in 2010 and each alternate year thereafter;
(e)for the last two weeks of the long summer holiday period in 2011 and each alternate year thereafter.
4Each party is at liberty to telephone the child at all reasonable times when the child is in the other party’s care, and they will provide each other with a suitable contact number for the purposes of that contact.
5If either party wishes to take the child out of the North Queensland area for more than 48 hours, that parent is to provide the other parent in writing of the itinerary of any such travel and the contact details for the child while the child is away.
6In relation to the child’s education:
(a)the mother will notify the father of the details of any school that the child is enrolled in, and the father will ensure that the child attends school on every school day, except in the case of sickness, in which case the father will advise the school and the mother of the circumstances of any such illness;
(b)the parties will equally share the cost of any school fees, including fees associated with uniforms, school books, excursions or other school related expenses;
(c)the mother will authorize the child’s school to provide the father with copies of the child’s school reports and any other written material relating to the child’s progress or participation at school;
(d)the mother will authorize the child’s school to provide the father with a copy of any photograph order form.
7The mother will keep the father advised at all times of the child’s medical practitioner and dentist if and when they change.
8Each party will advise the other of their residential address and contact telephone number within 48 hours of any change to those details.
9That the father be restrained from denigrating:
(a)the mother;
(b)The mother’s partner;
(c)any member of the mother’s family,
to the child, or within the child’s hearing; or from allowing any other person to do so.
10That the father be restrained from physically disciplining the child, or from allowing any other person to do so.
11That the father do all things possible to prevent the child from being exposed to violence.

Father

The father seeks the following orders:
1.The Child [A] born … August 1996 (“the child”) live with the father,
2.The father have sole parental responsibility for the child,
3.The child spend such time with the mother as is agreed to between the parents, and that the child’s wishes be considered in any such arrangements,
4.Neither party use physical discipline on the child or allow any other person to do so (the father did not press this application),
5.The child to be provided with her own room in her mother’s home should she stay overnight with her mother, and
6.Neither party denigrate the other or permit any other person to do so.

Independent Children's Lawyer

At the end of the case, the Independent Children's Lawyer sought orders in the following terms:
1.The father will have sole parental responsibility for [Child A] born … August 1996 (“the child”).
2.The child will live with the father.
3.That the father will communicate with the mother in writing on one occasion per calendar month advising her of any significant developments in relation to the child’s health, education, religion and any other long term issues.
4.The parents be restrained and an injunction issue restraining the parents from relocating the child from the [North Queensland] area, save for holiday periods which fall during the child’s school holidays or by agreement between the parents in writing.
5.The child will spend time with and communicate with the mother as follows:-
5.1.Four days each fortnight from after school Thursday to the commencement of school on Monday to be extended by 24 hours should there be a public holiday or pupil free day;
5.2.For one half of all school holidays with the father to have the first half in even numbered years and the mother to have the first half in odd numbered years and alternating.
5.3.By phone on at least one occasion each week;
5.4.At such further or other times as agreed between the parties.
6.Changeovers will take place at school where possible and failing that at the MacDonald’s in … [North Queensland].
7.Each parent is restrained and an injunction issue restraining each parent from denigrating the other parent and the child’s religious beliefs or extended family members.
8.Each parent is restrained and an injunction issue restraining each parent from allowing the child to remain in the presence of third persons who are denigrating the other parent and the child’s religious beliefs or extended family members.
9.Both parents will sign all documents and do all acts and things necessary and meet equally in any cost involved and shall ensure that the child attends at either the [N] State School or [E] College as from the commencement of the academic year in 2011. The parties to agree as to the school the child is to attend and failing agreement, after consultation with the mother, the father will decide the choice of school.
10.Both parents will sign all such documents and do all such acts and things as are necessary to enroll the child in a course of protective behaviours with a psychologist as agreed between the parties and failing agreement as recommended by the Independent Children's Lawyer.
11.Each parent will keep the other advised of their home address, email address, landline and mobile telephone numbers and shall advise each other of any change forthwith upon that change.
12.These orders confirm the authority of both parents to communicate with and obtain information and documents from the child’s school and treating health professionals.
13.Each parent will provide to the other parent no less than fourteen (14) days written notice of any intended interstate travel by the child and will provide the other parent with details of any proposed departure and return dates for the child.
14.Each parent will complete a Focus on Kids course within six months of the date of these orders and provide a copy of the certificate of completion to the other parent.
15.A section 65 L order be made and be in place for the period of 12 months.
16.Liberty to apply on one week’s written notice to all parties.
17.The Independent Children's Lawyer be discharged when the supervision order expires.

DOCUMENTS RELIED UPON

The Mother relies on the following documents:
12.1.Mother’s amended initiating application filed 6.7.10
12.2.Mother’s affidavit filed 5.7.10
12.3.Affidavit of the mother’s brother G filed 13.04.10
12.4.Affidavit of ex-Community member Ms T filed 23.6.10
12.5.Affidavit of ex-Community member Ms D filed 29.06.10
12.6.Affidavit of the Leader’s ex-daughter-in-law filed 29.06.10
12.7.Affidavit of the mother’s de facto partner filed 05.07.10
12.8.Affidavit of ex-Community member Ms M filed 05.07.10
12.9.Affidavit of the child’s psychologist filed 06.07.10
12.10.Affidavit of ex-Community member Mr Z filed 11.06.10
The father relies on the following documents:
13.1.Father’s Affidavit sworn 20.10.10, filed in Court 01.11.10
13.2.Father’s Affidavit filed 06.07.10
13.3.Father’s Affidavit filed 25.06.10
13.4.Father’s Affidavit filed 01.03.10 (only as to photographs contained in exhibit LAJ to that affidavit)
13.5.Affidavit of the father’s brother filed 19.05.10
13.6.Affidavit of the father’s brother filed 25.06.10
13.7.Affidavit of the Leader’s de facto partner filed 25.06.10
13.8.Affidavit of Community member Ms E filed 25.06.10
13.9.Affidavits of Community member Ms L filed 1.6.10 and 25.06.10
13.10.Affidavit of child F filed 01.03.10
13.11.Affidavit of the mother’s brother X filed 07.05.10
13.12.Affidavit of Community member Ms A filed 10.06.10
13.13.Affidavit of local police sergeant filed 06.07.10
13.14.Affidavit of Community member Ms H filed 10.06.10
13.15.Affidavit of Community member Mr W sworn 03.08.10 and filed in Court.
The Independent Children’s Lawyer relied on the following documents:
14.1.Expert Report (Dr R) filed 4.6.10
14.2.Affidavit of the leader filed 24.6.10 and another sworn 30 July 2010 filed in court.
14.3.Orders made by FM Willis on 15 February 2010
14.4.Orders made by Watts J on 19 April 2010
14.5.Orders made by Watts J on 11 June 2010

SHORT HISTORY

The Respondent Father was born in 1957 and is aged 52.
The Applicant Mother was born in 1962 and is aged 47.
Both the mother and the father joined the Community separately in 1979.
In 1981 the parties married formally. They had married informally in 1980.
The child’s older siblings were born in 1981, 1982, 1984, 1986, 1988, 1991 and 1992. Five of the older siblings were born with intellectual disabilities.
In August 1996 the subject child was born. She is currently aged 14 years. She does not suffer from intellectual disabilities or any other medical disability.
The child’s younger brother was born in 1999 with intellectual disabilities.
In early 2008 the parties separated and the mother left the Community.

MY CONVERSATION WITH THE CHILD

During the hearing, the parties and the Independent Children's Lawyer requested that I see the child. In the particular circumstances of this case, I agreed to do so but in the presence of a family consultant. I had a conversation with the family consultant before and after my interview with the child. The family consultant reported a summary of the interview to the parties in the witness box immediately after it had happened. My conversation with the family consultant, before the interview, the interview with the child and my conversation with the family consultant after the interview were all recorded. I ordered that a transcript of that recording be given to the lawyers for the parties and the Independent Children's Lawyer, with the provision the parties could inspect the transcript but not copy it.

CREDIT

As will become clear, it is not necessary in this case for me to make detailed findings of credit in relation to each witness. Many of the witnesses had different experiences in the Community and I accept that on the whole they are all relating to me their perceptions and experiences, in a truthful manner. In relation to the issue of family violence as it existed in the relationship between the mother and the father, I do not accept the father’s evidence that that relationship was totally devoid of physical aggression by him. On the other hand, I do not accept the mother’s allegations of the extent and nature of that family violence. What flows from that in respect of the credit of the mother and father, is that whilst on the whole I accept that they both attempted to truthfully answer questions, they have quite different perceptions of various aspects of their relationship, and I am unable to absolutely accept the version that either of them gives.
In relation to one particular matter, I did find compelling the evidence given by Community member Ms H in relation to an incident between herself and the mother when she was 12 years of age (she is currently 22 years of age). I find that her recollection of that event to be accurate and the mother’s to be not accurate.

CHRONOLOGY

The Respondent Father, Mr Juni, was born in 1957.
The Applicant Mother, Ms Juni, was born in 1962. The mother is a carrier for an intellectual disability.
The mother and the father joined the Community separately in 1979 at the North Queensland settlement.
The parties married informally in 1980.
In 1981 the parties married in the Registry Office in North Queensland.
In 1981 Child B was born. He is currently aged 29 years. He has intellectual disabilities. He now lives with the father in North Queensland and sometimes with the Community at Central West New South Wales (Central West NSW). The father receives a carer’s pension in respect of his care of Child B.
In 1982 Child C was born. He is currently aged 28 years. He has intellectual disabilities and epilepsy. He lives with the mother.
In 1984 Child D was born. She is currently aged 25 years. She intellectual disabilities but is able to function independently. Child D lives outside the Community however sees both her parents regularly. She has undergone a medical procedure and consequently is unable to have children.
In 1986 Child E was born. She is currently aged 24 years. She has intellectual disabilities. She lives with the mother.
In 1988 the family moved to the Central West NSW settlement of the Community.
In 1988 Child F was born. He is currently aged 22 years. Child F was born with blockages of the small intestine. The parties travelled to Sydney to get him medical attention. Child F gave evidence in these proceedings on behalf of his father. He is estranged from his mother and considered her an adulteress. He considered the mother’s attack on the Community in these proceedings as a personal attack upon him. He is still part of the Community, living in a Community house in North Queensland during the working week and working 3 days a week as an electrician.
The parties became aware of their children’s intellectual disabilities in 1989.
The parties returned to the North Queensland settlement of the Community in 1989.
In 1991 Child G was born. She is currently aged 19 years. She was born with a hole in the heart requiring an operation. She no longer lives in the Community. She has had a child and lives with the father of the child. She lives in North Queensland. The leader of the Community has allowed Child G and her family to visit the Community.
In 1992 Child H was born. He is currently aged 18 years. He has intellectual disabilities. He lives with the mother.
In 1996 the family moved to Southern Queensland and then to the Southern Queensland settlement of the Community, where the mother ran a disability basketball team.
In August 1996 the child, who is the focus of these proceedings, was born. She is currently aged 14 years. As already mentioned, she does not suffer from intellectual disabilities or any other medical disability.
In 1999 Child I was born. He is currently aged 11 years. He has intellectual disabilities. He currently lives with the mother.
In 2004 the parties returned to the North Queensland settlement of the Community.
In 2008 Child B moved to a property owned by the Community in Central West NSW.
On 20 February (father’s version) or 23 February 2008 (mother’s version), the parties separated and the mother took Child I with her (nothing turns on the difference).
Child I returned to live with the father in late March 2008.
In April 2008 the mother and father entered an informal shared care arrangement for the three younger children.
The mother and the mother’s current partner commenced a relationship in August/September 2008 and began living in a de facto relationship in November 2008.
In 2009 the mother’s partner was served with an interim restraining order by his estranged wife. He did not contest the final restraining order being made, not realising his children were covered by its terms. He denies any violence.
In early March 2009 the Mother and her partner travelled to the Gold Coast for a holiday with the subject child and Child I.
The parties had a Family Dispute Conference on 6 May 2009. Later during the month of May, draft Consent Orders were signed detailing shared care arrangement for the children, and for the adult children to live with the father. No orders were made but the child commenced this arrangement in July 2009.
The mother began working in a dairy in July 2009.
In November 2009, Child H came to live with the mother permanently. Later, on 25 November Child E came to live with the mother after she saw him in a bus on his own and took him with her.
The mother initiated proceedings on 11 December 2009.
On 15 February 2010 Interim orders were made by Federal Magistrate Willis whereby Child H and Child I were to live with mother permanently, and the child was to live with mother and father in alternate weeks.
On 19 April 2010 I made a Final Order by consent that Child H and Child I live with the mother and that she have sole parental responsibility.
So, at the current time, Child C, Child E, Child H and Child I all live with the mother full time. Child B lives with the father full time. The child subject of these proceedings, lives with the mother and father in alternate weeks.

EVIDENCE ABOUT THE COMMUNITY

A major issue raised by the mother was the environment that the child would be exposed to in the Community. The mother insists the Community is violent and controlling where women are sub-citizens and all decisions are made by the leader. The father says it is a nurturing and supportive environment that teaches Christian ideals.
The Community has approximately 150 members, dispersed between three settlements in North Queensland, South Queensland and Central West NSW. The Community also has a community house in North Queensland outside the settlement. The leader lives in Sydney. The leader’s name varies, so I will use the name ‘the leader’ for convenience…
The family consultant noted it is important to assess the Community, to determine whether it is a ‘destructive cult’ or an ‘alternate lifestyle’. The family consultant notes the features of the Community that would normally be associated with those of a cult:
61.1.Isolation of the Community from the outside world;
61.2.Isolation of members who have left the Community;
61.3.Communal reliance on Community members to contribute financially and with their labour;
61.4.A leader who drives Community behaviour and attitudes; and
61.5.Belief that one can only fulfil their duty to the superior being within the confines of the Community.
The family consultant also notes however that the behaviours and lifestyle of the Community are “not unlike” other communal communities who share property and home school children in the belief to do so will avoid the “destructive” nature of the outside community.

Teachings and Power

The mother said that all teachings come from the leader’s word and that he is a self proclaimed prophet. The mother said the mainstream church eventually shunned the Community because of these beliefs. The Community is not registered as a Church or a community with open records. I note however, that there is a letter dated 18 June 2010 in the leader’s de facto partner’s affidavit at Annexure A, from an Anglican Bishop that expresses his blessings for the Community to the leader and Exhibit J similarly identifies the leader as connected to the wider church. The leader explains they are not registered as a church because they believe in the complete separation of church and state. The father however in evidence said the Community recognised State law, particularly as it related to family violence. The father says the Community follows an ‘Orthodox Christian Lifestyle’ which involves prayer three times daily and that the ‘spiritual elder’ (the leader) has made spiritual guidelines that are to be obeyed in order to live by the Bible strictly and literally.
The mother said the leader oversaw the Community’s every activity. The mother said that he would often order the relocation of individuals or families to other settlements of the Community. The mother’s brother G (and former Community member) gave evidence that no autonomy existed in the Community and that all decisions came from the leader, who was in constant telephone contact with each settlement.
All the mother’s witnesses restate the total control and ultimate power that the leader had over Community members. Ex-Community member Ms T tells how the leader read all incoming mail, and that he required all members to take on a Biblical name. Permission was required for any act that wasn’t otherwise prescribed by the leader.
The father said that no-one is forced to do what they do not want to do, but that if a person is willingly uncooperative with the rules, their presence in the Community will be questioned. The father’s brother said although the leader needed to approve certain things, for example expenditure of money for major improvements to properties, daily chores are organised within each settlement, and after consultation with members. He also says there is no indoctrination.
The leader explains that the respect afforded to him is due to his behaviour – living and working with the Community members, encouraging them and serving them, leading them the right way. He also referred on a number of occasions in his written and oral evidence to a 42 day period of fasting that he undertook, apparently on the basis that it established his self denial was fearless.
The mother said the leader actively encouraged Community members to shun those outside the Community, and would teach them that they were going to hell if they left or were influenced by mainstream society. This was reinforced during my conversation with the child. She believes that if you are not a true strong Christian, you will go to hell. She does not want her mother to go to hell. The mother is also particularly concerned about the Community’s policy to shun those that have left the Community. All except one of the mother’s witnesses mention that contact between the Community members and the outside was severely limited.
Past Community members have shed light on the difficultly involved in leaving the Community and the consequential reluctance. Ex-Community member Ms M recalls feeling scared and depressed after leaving the Community, worried that she would burn in hell. Ex-Community member Mr Z similarly noted that it took some time to overcome the ‘traumas and brainwashing’ of the Community. Ex-Community member Ms D explains that leaving the Community is difficult due to the choice to leave behind the entirety of their belief systems, support networks and way of life. It is also difficult where all decisions had previously been made by the Community leader and no autonomy was practiced. Also difficult was the ‘phobia’ that the outside world was evil and by leaving the Community you are betraying God.
The father’s witnesses deny anything but openness and acceptance of others outside the Community, unless they do not show that same openness. The leader maintains that Community members were encouraged to spend time outside the Community and never found any difficulty in doing this. He cites numerous examples. He said that the Community’s children socialise well in mainstream schools. Child F, who gave evidence for his father, works in the mainstream job as an electrician, living in a community house in North Queensland, outside the Community settlement. He said many other Community members also do. The father said they are open to outsiders, as the ‘great majority’ of Community members work outside in the general community, and visitors are welcomed, including relatives. The father provides photographs of ‘outings’ that the Community has taken outside the confines of the settlement, and a photo of Child B and Child C in their scouts uniform.
The mother said polygamy was acceptable in the Community and that the leader has four wives while another settlement leader has two wives. Ex-Community member Ms T agreed and also explained that she came to Australia from overseas to get married, and her soon-to-be husband, Community member Mr O, brought back two other girls in order to make them wives of Community members. All ex-Community members that were witnesses for the mother agreed that polygamy was accepted, particularly for the leader. This included the leader’s ex-daughter-in-law. The father acknowledged that the Community believes polygamy is allowed by the Bible but says that the relationships are too difficult to manage and so, to his knowledge, polygamy is not practiced. The leader’s ‘de facto’ partner is silent about this issue.
When the leader was cross examined in respect of his views about polygamy, he indicated that he had in the past taken a second wife because he formed the view that the woman to whom he was legally married could no longer continue to bear children. The leader has 16 children between the two women. He told me he had 13 sons and 3 daughters.
The father said that members are free to leave the Community if they desire. The leader’s ex-daughter-in-law reports being held at the property against her will for two months when she wanted to leave, unable to find the money to buy a ticket, or call her family. Ex-Community member Mr Z says he was watched continuously after he had made his intentions to leave known, and left during the night. The leader said this is not the case and repeats that members are free to leave, and have often returned, unless banned.
The father said that a biblical language was taught and spoken in the Community but you would not be punished for speaking English. The leader says very little of the biblical language is spoken in the Community.
Ex-Community member Ms T recalls how the leader refused to allow some of her children to see her dying mother, and that he moved them to the South Queensland settlement during one visit. Ex-Community member Ms M recalls that her mother had to seek permission to temporarily leave the Community to see her children and her sister was given permission to visit her only when she had children. She says contact between her family inside and outside the Community via telephone is prohibited.

Violence and Abuse

The wife said that retribution was real in the Community, and if women did not act as expected, they would be beaten. Violence was justified as necessary to teach conformity with ‘God’s way’. She said that psychological and emotional abuse was rife.
The witnesses called on behalf of the wife were persons who were once members of the Community but were no longer members of the Community. They all had negative things to say about aspects of their experiences whilst in the Community.
The mother’s brother G explained that they were taught to follow the example of others who themselves followed the leader’s example. He said the leader authorised the use of violence. He said he himself followed this example for a time and it resulted in the break-down of his marriage. He has since ceased this behaviour. Each of the mother’s witnesses that were former Community members agreed that family violence was common in the Community. Even the child admitted as much to a psychologist, who the child saw briefly at the end of 2009. The child’s psychologist reported “Miss [Juni] stated at that time she was aware of domestic violence within the closed community, but that she would like to return there, even if it meant she would be victimised at some point in the future” and later “The child said she is hoping to be a mother one day, and that if she returned to the community and married a man who beat her, she would be okay with this because she would rather put up with domestic violence and have children than to not marry and not have children”. She also said that the child had told her when a 16 year old girl became pregnant to a 13 or 14 year old boy, they were both beaten and then forced to marry.
The mother says that violence and abuse was commonplace in the Community and recalls specific examples:
79.1.On one occasion when Child B needed to use the toilet the mother was too busy with her children to help him and sent him running to the toilet area. He lost control of his bowels on the way. A full toilet can was emptied on her bed by Community members as punishment for being a bad mother. The children witnessed this. The mother said she was beaten by the father later.
79.2.On another occasion, the mother says she was busy preparing drinks for after the prayer meeting and when she was finished, took a sip. It was forbidden to drink during prayer. She was verbally abused by a male Community member and she narrowed her eyes at him. This act earned a beating from the father for being disrespectful.
79.3.When the mother first told the father she wanted to leave the Community, the father punched her in the jaw. The mother said she had to drink out of a straw for about two weeks and wasn’t allowed medical attention. As I have indicated elsewhere, I am not able to find on the requisite standard that the mother’s jaw was broken.
79.4.The mother said that the father would often beat her – punching her to the back of the head, kicking and hitting her, and pulling her hair. She said the children often witnessed this. The mother said the father would dole out punishment to her without ever considering the truth of the complaint against her.
79.5.The mother recalls that a Community member had seen the leader beat his second wife with a brick and the mother had assisted in attending to her wounds. The mother said she also witnessed the leader holding his first wife and kneeing her repeatedly in the stomach.

The mother said that Community members were encouraged to use physical discipline against children including hitting and even punching. The mother said that the children with intellectual disabilities were disciplined heavily by the father and others in the Community, and also herself. She said this was because she was directed to do so, and also because of frustration. The mother said she realised this wasn’t helping them and ceased, but that she could not convince the others to do the same. I accept that on one occasion the mother administered severe physical discipline to Community member Ms H.
The mother said that all Community members were encouraged to discipline others’ children, and that she could not regulate this discipline. Older children could also punch younger children. As a result, the mother said her intellectually disabled children were often treated in an inhumane way. She gave the following examples:
81.1.A female Community member pushed Child B’s head into the side of the desk when he was being ‘lazy’ and not doing his school work. She also punched Child D when she was 10 years old; pushed Child H to the ground then picked him up by his hair; and punched and slapped Child C for not doing a chore.
81.2.The leader of the South Queensland settlement, wedged Child F up against a vehicle with a bin; punched Child F for not looking after the chooks properly (he was not questioned about these incidents); punched Child C for being scared of a dog; knocked over the subject child when she started walking; kicked and punched Child E and yelled at the other children. His three daughters acted similarly.
Ex-Community member Mr Z agreed that children were verbally and physically disciplined in a harsh manner by adults and older children, with no exception for the disabled children.
The leader’s ex-daughter-in-law said that she personally witnessed Community members verbally abuse, punch, smack, shove, and punch the mother’s children. She also says she witnessed other women’s bruising, and having herself been the victim of violence. She said violence was a normal part of disciplining children and wives.
Ex-Community member Ms M was a child in the Community and said that her mother was instructed to hit her children, and that she was also hit by the other adults in the Community. She described some of the other women as ‘vicious’ but said that the mother in these proceedings never hit her. She remembers seeing, during a visit, a woman slap another woman’s two year old across the face when she wouldn’t open her mouth to feed. She also says her mother was ‘severely beaten’ by her husband.
Ex-Community member Ms M also reported that her brother was sent to live in the men’s quarters when he was 11. He later reported, in about 1986, that he had been repeatedly sexually molested by a man there. The children began living with their father outside the Community after this, and ex-Community member Ms M says her brother was banned from returning. On one occasion while visiting the mother, the children had to stay on the other side of the river from the Community because her brother was banned. There were no amenities or facilities there. Her brother was ‘hassled’ by a group of the men about making sexual abuse allegations. There was no concern for his experience.
Ex-Community member Ms T does not describe violence to children in the same degree – she said her children were openly smacked, flicked in the face and ears. She does describe her own ‘bashing’ at the hands of her husband however, where he bashed her, locked her in the room all night, continued the bashing in the morning, pulled her hair and ultimately dropped her at the Centrelink office, relinquishing responsibility for her and the children. It appears this was a solitary occasion. She said she saw other women being beaten.
Many of the witnesses called in the father’s case were current members of the Community. They related positive experiences of their life in the Community and on the whole, refuted allegations of the teaching of the use of violence or actual systemic violence within the Community.
The father says that children were generally ‘sanctioned’ by their own parents with a smack to the bottom however another ‘caring person who the parents acknowledge’ may also sanction a child. The father says he has ensured there is no physical punishment to the subject child in accordance with the orders of 19 April 2010. The father’s case is that it was the mother, and not him, who was violent.
All the father’s witnesses say they have not witnessed bashing or abuse of children by adults. Community member Ms E, a member of the Community for 1 ½ years, says she would never be in a community that condoned violence towards women and children, having researched and written a thesis on violence against women.
A local Sergeant and Officer in Charge with the Queensland Police Force reported having visited the community regularly to get to know community members, and also on child custody matters or queries where family members had lost contact with a member. She said that the Community members were peaceful and would keep to themselves and noted that the children were very well behaved and the women were similarly well mannered. She said although there were rumours about domestic violence, she never attended on that basis, never saw signs of violence or of people living in fear.
The leader said that neither the mother nor the father ever came to him about the children being the victims of violence, and if anything, the mother was the violent one. In relation to violence between spouses, the leader said that in comparison to world statistics about domestic violence, the Community is doing well. He does not deny that from time to time there have been incidences of family violence between particular Community members.
In response to the mother’s allegations about violence within the Community, the father has put on two affidavits by Community members who say the mother was violent. Community member Ms A said that she witnessed the mother dive at Community member Ms V during a heated argument about the children in 1998/1999. She said the mother attacked her head and face resulting in scratches and bruising. Community member Ms A said she also witnessed the mother blast a high pressure hose in the face of Community member Ms V in 1999/2000. A third incident occurred when the mother pushed past a settlement leader, knocking him sideways three times, and refused to apologise. Community member Ms A said the mother was ‘out of control’ many times and witnessed her lashing out at her own and other children, causing black eyes and scratches. The mother responded to these allegations as follows:
92.1.The mother said she did go to push Community member Ms V, after a disagreement where she continued to feed Child E powdered milk even though it would make him vomit. The mother said Community member Ms V grabbed her head, the mother grabbed back, and both women fell and wrestled. It resulted in a scratch on the face of Community member Ms V.
92.2.With regards to the second incident, the mother said Community member Ms V was yelling at the mother for not smacking her kids. The mother was filling a tub of water with an ordinary hose at the time and turned it on her to ‘cool her down’ as she couldn’t get a word in. It was not a high pressure hose and Community member Ms V was not hurt.
92.3.In regards to pushing past another leader the mother responds to an identical incident with a person of a different name, and says she was preparing dinner and required to walk to and from the fire. The Community member was sitting in the walk-way. The mother says she wasn’t even aware that she touched him. She refused to apologise because there was nothing to apologise for. The mother claims this resulted in a beating by the father.
92.4.The mother says she did not cause her children injuries. She occasionally smacked their bottoms as she was told to by other Community members, and once slapped Child D in frustration.
Community member Ms H records in an affidavit that the mother punched and kicked her and pushed her had into the veranda in 2001/2002 when she was 12 years old. She says there was nothing to warrant this and 2 children were the only witnesses. The mother responded by explaining that Community member Ms H was living in the same home as the Juni family and was constantly bullying the disabled children. The mother responded to an incident where Community member Ms H ‘punched into’ Child I, resulting in welts and his uncontrollable shaking and sobbing. The mother admitted she was shaking in anger and slapped Community member Ms H, and pushed her to the ground. She did not punch or kick her or push her head into the veranda. The mother admits she was out of control but says it was a reaction to Community member Ms H’s constant abuse towards her disabled children.
As I have mentioned above, Community member Ms H impressed me as a witness without guile. As a 22 year old woman, she is remembering an event that happened to her at the age of 12. The event was related in a very vivid way and I accept her evidence as to what happened on that occasion in preference to the evidence of the mother.
The family consultant notes that the mother says there is no objective evidence of violence due to the lack of medical intervention with Community members. On the other hand, there is evidence of medical intervention with those of her own children who suffer from intellectual disabilities and other medical issues.

Status of Women

The mother says that Community members were taught that women’s purpose was to bear children and serve the husband. The mother said that women must not look men in the eye, and they must be subservient. She said they were punished if they were not. They were taught that they had no decision making power, and if they became pushy about an issue they would be punished.
The mother reported the leader making comments like “women are only good from the waste down” and that they were ‘useless’. In referring to the Community’s practice for men not to shake a female hand, the leader reportedly said “it’s better to shake a woman’s tit than her hand”. The family consultant noted that the men would not shake her hand. In my interview with the child, she declined to greet me with a handshake, and during the leader’s oral evidence he demonstrated how men would be expected to greet women within the Community.
The women in the community have some dress code requirements. The mother said this is supposed to be a sign of deference to the husband and the men generally. The leader said this requirement is sourced from the Bible, and cited references.
The mother’s brother G was recalled as a witness on 1 November 2010. The father had put on an affidavit about conversations he had had with the child in respect of an incident that had taken place between the child and her uncle in the surf. The incident involved her uncle removing the child’s head scarf. Whilst it is clear that the mother’s brother G was insensitive to the child’s feelings, what happened in the surf in my view did not go beyond the normal boundaries of annoying behaviour by an uncle who was interacting with his niece in the surf in a playful manner. I accept the mother’s brother’s version of his conversation with the child and I do not accept any assertion made against him that he was attempting to indoctrinate the child into the mother’s views.
The mother said that it was a general rule that the women would cook and clean and the men would work in the fields. The father and the leader agreed with this statement in general but said that men can and do sometimes cook, and women can work in the fields if they wish.
It was clear in my conversation with the child that she generally was of the view that the role of a man is to work outside the home whilst the role of a women is to keep the home fires burning (in this case maybe literally).
The father agrees that the Community teaches that the male is the head of the household, which gives clear lines of authority and responsibility that assists in a practical way and maintains harmony.

A husband’s ability to discipline his wife

As mentioned above, the child told a psychologist on 7 December 2009 that she was aware of the domestic violence in the community, and said she preferred to marry and have children in a violent relationship than not marry and have children at all.
During the interview with the child, we talked about family violence within the Community. The following conversation occurred:
MISS JUNI:   Well, I’m not exactly sure. I’ve only heard stories. Like, I heard of one fellow, he beat up his wife terribly and she went to hospital, but, like, the leader of the Community, he picked – he picked a fight with this fellow because he was saying, “You think you’re good beating up woman,” and he ended up getting kicked out anyway and, so, it’s not okay to beat up people. Like, a slap on the face, just to wake them up, like, I don’t believe in beating women is okay at all and stuff and - - -
HIS HONOUR:   But it would be all right if your husband slapped you on the face to discipline you or to wake you up?
MISS JUNI:   Yes, I mean I – well, yes, like, I haven’t gone – like, what I normally get what I – everything that I believe I get from the Bible and I’m trying – I haven’t really thought about any of the beatings and stuff and, if I deserved it, I guess I deserved it and stuff.
During his oral evidence, the leader said that the part of the New Testament that dealt with this issue was in Ephesians (I assume the reference is Chapter 5, verse 22). The leader quoted scripture as saying “women should obey their husbands and the husbands should love their wives”. The leader added that the Bible did not say that wives had to love their husbands. Although the leader indicated that it was not his interpretation of that passage in the Bible that it allowed physical discipline, it is far from clear that that is the interpretation which some members of the Community have been taught.
Apart from the child, at least two witnesses for the husband, the father’s brother, a leader of the Community’s community in Central West NSW and Community member Ms H, gave evidence that they believe that husbands could physically discipline their wives. Community member Ms H, who is married with two children, gave the following evidence:
I.C.L. How would you describe the role of a wife in the community?
Being under your husband, being subjective to your husband, honouring your husband…
Would your husband have the ability, the right to discipline you?
Yes.
And would that extend to physical discipline?
At times, but not to leave, physically, you know injure me and bruise me and really put me out of action or anything like that.
The leader seemed very surprised at the child’s interpretation of the Bible. When I quoted the child’s actual words to him he indicated that the child must have been reading the Old Testament rather than the New Testament and commented that there were parts of the Old Testament that might lead one to believe that it was appropriate for husbands to behave in that way to their wives.
I did not find this evidence from the leader convincing. I find that he is undoubtedly the spiritual leader of the Community. He has written extensively for the Community and his teachings and directives are read by the Community. I find that it is improbable that these attitudes by particular members of the Community are a product of an idiosyncratic reading of the Bible by them.
Nonetheless, during the hearing, the leader indicated that he would speak to the child and explain to her that it was his view that she had misinterpreted what the Bible taught in relation to physical discipline by husbands on wives.
I have been requested, and I accept it appropriate, to require the father to have the child speak to the leader on the basis the leader will confirm to her the interpretation of scripture on this topic which he gave in evidence, namely that a husband is not authorised by scripture to physically discipline his wife.
It has been suggested also that the child would benefit from protective behaviour counselling. It is likely, given the child’s strong religious beliefs, that she will marry within the Community or marry somebody who joins the Community. If her husband has attitudes similar to those I heard expressed by at least two of the father’s witnesses, then it is important that the child had information about what her alternatives are. Protective counselling may provide some assistance in ameliorating future risk to her. It might for example mean that she would be confident enough to discussing these issues with any future partner early in their relationship.
Physical discipline by a husband or wife is illegal under Australian criminal law and it is inappropriate for it to be taught in this country as acceptable practice within any religion.

Finances

The mother alleges that Community members must hand over all their goods, savings and bank cards (and PINs) upon joining the Community. She said that all Centrelink payments are forwarded to the leader. This was supposedly for a shared material and spiritual reliance. The mother’s brother G says this arrangement is due to the scriptures telling them they must ‘forsake all’ (Luke 14:33). All the mother’s witnesses agree with her evidence about the leader’s total control over Community finances. The leader’s ex-daughter-in-law personally handed over $10,000.
The mother said that the only access ordinary Community members had to money was when they were running the shopping errands and then they was be given a list to strictly adhere to, with receipts to be presented. If goods were required an adult would have to request it from the leader who would then make a decision on that item. Clothing was purchased from charity shops. A minimal living style was adopted, explained by the mother’s brother G to be due to the scriptures telling them to deny themselves like Jesus did (Luke 9:23).
The mother claims that the finances were not used appropriately, having only been provided with the bare essentials. The mother notes that the leader and his family own multiple properties without having worked in the outside workforce in her knowledge, such name searches being annexed to ex-Community member Ms T’s affidavit. The leader confirmed in his oral evidence that there were multiple properties owned in his sole name in at least two States. He said that these properties were held by him for the benefit of the Community. He confirmed that his Will leaves all of the properties to one of his sons, whom he expects will take his place as leader when he is unable to continue in that role.
The father’s brother says that all income and expenditure is accounted for in accounts books for transparency.
The father confirmed that there was strict financial accounting within the Community. Child F confirmed his income as an electrician is placed in an account over which he does not have control. His PIN card is kept by the Community. Withdrawals were made from his account, he says with his permission, during a period he was overseas.
The mother said few Community members had jobs in mainstream society and those that did were doing so on the premise of learning trades to teach Community members. Income came from Centrelink. The father said the ‘great majority’ of Community members had jobs in mainstream society, as did the leader. The leader’s de facto partner worked in various roles in the medical profession in the early years but that upon having children, she chose to be a dedicated mother instead, and she is happy with that decision. The leader records a list of occupations in which Community members have been involved, in annexures to his affidavit.
The mother said that because she ‘secreted’ her bank account number, she would occasionally withdraw $20 to $30, to buy the children second hand clothes or some food. The father found out and told the leader and the mother was no longer allowed out unsupervised. The father said the mother removed $800 from their joint account when she left the Community and says this was an example of how easily personal money could be obtained.

Ex-Community member Ms T agrees with the mother’s evidence about lack of financial autonomy, however then fails to explain how she flew herself and some of her children overseas.
The father says the Community is not opposed to private property, and that all members are provided with clothes and jewellery, and have access to personal bank accounts. He said that “individuals may choose to, for convenience to have someone collect the money” and that those who want to participate in the community ‘willingly’ hand over money to be used in the community fund.
The child confirmed to me in my conversation with her that her wardrobe is confined to a number of sets of clothes.
The leader’s de facto partner explains that she has always been in charge of her money. She alternated between living in her home overseas and with the Community in Australia. Each time she returned to the Community, she distributed her money to friends and family overseas which included selling and distributing the proceeds from her overseas home three times. She did not explain why she did this rather than bring those proceeds to the community, although she did say she was provided for within the community.
An affidavit by the father’s brother, (leader in the Central West NSW settlement) says the leader knew nothing about the finances in NSW and is not required to approve shopping lists. Only expensive items or unusual needs must be approved first.
The mother’s younger brother X (and Community member), says that he has regularly been in charge of Community money, and that he is presently a signatory to a cheque account along with 14 others. Two signatories are required to withdraw money, and usually signatories are the main contributors. He said that everyone has their own bank account in addition, though most choose to leave their key cards in a common place for the common benefit. He said that money would often build up in personal accounts as it remains unused by the individual or the Community. The mother’s brother also stated that the leader’s permission was not required to spend money but he was consulted out of respect. The father confirmed that it was not so much a matter of seeking permission to spend money, but rather showing respect to the leader, by asking permission.
The leader says that Community members were asked to forsake all their belongings before entering the Community, and this could be received by family, friends or the community. He denies having total control over Community finances.

Nutrition and health

The mother says there is little fresh food, and the Community relied on handouts from farmers and food disposed by a supermarket to waste bins. Although they grew vegetables, this was for selling. The mother says they rarely ate meat. The mother’s witnesses agree that much of their fruit and vegetable supply was from supermarket bins.
The father said that the water source at North Queensland ran dry for a few years, requiring Community members to obtain fruit and vegetables from the local market. A letter is provided by a local market seller annexed to the father’s affidavit, explaining that the Community would acquire the produce that was unsold at the end of the selling period, and that this was of good quality. Community member Ms E says the food is healthy and fresh, as did other Community members in their affidavits in support of the father.
The mother recalls the Community buying reject chickens that would be killed days ahead of meals and often cooked while rotten, due to the lack of adequate refrigeration.
The mother and ex-Community member Ms D said that lunch consisted of muesli and powdered milk, except in the North Queensland Community. The father said a range of salads was always available at lunch. I note that a magazine article about the Community includes this detail, and the article was written before the current proceedings had begun.
The mother said that access to medical facilities was limited and must first be approved by a ‘Govenor’. If they refused, then medical treatment was not obtained. Ex-Community member Ms D also said that access to medical help was severely limited.
The father said that if prescription drugs were necessary they were permissible, however he says he believes people are overmedicated. He has tried various remedies for Child C’s epilepsy including herbal medicine, a seizure dog, and oxygen to assist in seizure recovery. The father’s witnesses also said that medical treatment was not withheld. The leader explained that prescription drugs were fine as long as their need for it was explained, to reduce the possibility of becoming addicted to medications and drugs. Otherwise, medical treatment was the prerogative of the parents.
The father has recently attended to the child’s preventative dental treatment.
The mother explained the practice of the Community was to have every Community member participate in 2hrs of exercise each morning (except the Sabbath).
Ex-Community member Ms T said that women were not given the option of contraception and were forced to give birth at home. The parties had nine children. Community member Ms L is a mother of seven children. The father acknowledged that the contraceptive pill was discouraged and that most of the mother’s births were at home, but there was no compulsion to do so. The leader explained that contraceptives were not allowed as they encourage promiscuity and therefore adultery and child marriages. The leader, in his first affidavit explains:
“313. We are not keen to have promiscuity in our community. Give ‘the pill’ to one or two ladies & then they could pass it on to others their peers (as Ms [Juni] did) & then to their daughters. Then there aren’t enough bushes on the farm to contain/conceal them. Then there’s the possibilities of swap-arounds & some of the boys would know what your woman looks like from the inside out. Then follows the possibility of adultery, child marriages [an easy way for a girl to get married to whoever she wants. “Oh, dear, I’m pregnant. The pill didn’t work!”], unwanted pregnancies etc. We are a community, not a sewer.”
The leader also said that women were never forced to have home births.

Facilities

The mother said that living conditions in the settlements were not good, with most people living in caravans or ‘humpies’. Where there were houses they were crowded. Ex-Community member Ms T said when she left the Community she was living in a three bedroom home with nine adults and seven children. She said that people would be moved to other settlements before inspections.
The mother said there were no running toilets and that the toilets pictured in the father’s affidavit were for visitors only. The mother acknowledges that the child says these are now for general use. The mother says that bathing is done on the river and that men and women bathed separately.
The mother said there were kitchen facilities but they had to cook over wood fires instead. Ex-Community member Ms T said that modern inventions such as telephones, televisions and computers are banned, however she then makes two references to phone calls in or out of the Community.
The father’s brother’s affidavit outlines the nature of recreational equipment and activities existing in the Community, including table tennis table, go-karts and motorbikes, canoes, basketball court, other play equipment and ponies. He outlined the camping and sailing trips that Community members often took. The child told me she had wind surfed on a local dam.
The father’s brother says that there are three computers in the Central West NSW settlement and that most electricity comes from solar power, and as a second option, a generator.

Conclusion about the mother’s assertions about the Community

I find that the leader’s control over the Community is not as total and ultimate as portrayed by the mother. It is very clear that the leader does have considerable influence over the behaviour of members of the Community. He has written extensively about spiritual matters and those teachings (whether in writing or passed among Community members orally) are of significant importance to the way the Community members conduct their lives. The leader’s influence, however, does not, on the evidence, extend into the day to day and mundane decisions that members of the Community need to take. I accept for example that the leader has encouraged each of the Community members to take an active interest in the accounting procedures in a particular community. By those means, the leader expects that individual communities as a whole will in effect self audit themselves. The father confirmed that all expenditure was strictly recorded.
I am unable to accept the mother’s assertion that either the leader or the Community as a whole have a culture which is physically, psychologically and emotionally abusive.
It is conceded by the leader that there has been one incidence of family violence where a male member of the Community had to be asked to leave the Community. I accept that there have been other incidents of violence from time to time. There is nothing however to indicate that any examples of family violence over the years has been contributed to by some systemic teaching or attitude within the Community. There is nothing in the evidence to lead me to believe the incidence of family violence within families who are members of the Community is any higher than it is in the outside community.
Having said that, I conclude that there is some confusion amongst Community members as to the meaning of scripture in relation to the ability of a husband to physically discipline his wife. I will be making orders aimed at assisting the child in understanding the leader’s views about that topic and otherwise to assist the child in acquiring protective behaviours against any attempt by any male that she forms a relationship with to physically discipline her.
There is no doubt that the Community teaches, and the child has accepted, what might be described as “traditional values” of the role of men and women. The child for most of her developing life was brought up by the mother and father in the Community, having those roles modelled to her. I accept the family consultant’s view that it is inappropriate now for the mother to assert that these values, which are strongly held by the child, are in some way detrimental to her welfare.
The mother has not established that the arrangements the Community members voluntarily enter into in relation to their personal wealth are indicative of the fact that the Community is a ‘cult’. The members of many mainstream religious communities take a vow of poverty. Members of many religious communities make donations in order to support the operation of the day to day workings of that religious organisation. Child F explains that when a person joined the Community, the expectations about the acquisition and control of personal wealth was clearly explained.
There is no doubt the leader holds a large amount of community property in his own name. To date there is nothing to indicate that he has done anything other than hold property that has been accumulated for the benefit of members of the Community and that surplus funds have been diverted from time to time for capital expenditure to improve the facilities at various locations. For example, at the North Queensland settlement a new swimming pool was installed when the leader concluded that members of that community needed some relief from the heat during the height of summer.
I am unable to accept the mother’s evidence that there are significant issues in relation to nutrition and health amongst Community members. The child appeared to me to be very well nourished and of average weight for her height and age (I acknowledge she is currently spending half her time with her mother). None of the witnesses for the father who live within the Community and who gave evidence seemed to be malnourished. I accept the leader’s evidence that the women in the Community are not forced to have home births, although I find it is encouraged as normal practice.
Whilst some of the accommodation that the Community lives in may be basic, the child’s accommodation in North Queensland seems to be adequate and appropriate for her.
There were a number of references during the evidence to the Community’s teaching in respect to the issue of older children being able to physically discipline younger children. Whilst some Community members deny that there was any established policy, I find that there is a general understanding in the Community that children of an age of 12 are authorised to discipline (including physical discipline) younger children who are misbehaving if there are no adults present to do so. I do not have sufficient evidence to find that this understanding has led to any systematic abuse of younger children.
Overall, I am unable to find, as the mother asserted, that there are aspects of the Community’s behaviour that would lead me to conclude that the Community is a “destructive cult” from which it is necessary to remove the child, in her best interests.

THE LAW TO BE APPLIED

The objects of Part VII FLA is to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests. I consider these matters below.

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a) FLA)

The child would benefit from having a meaningful relationship with both her parents, and wishes to do so. The mother claims that if the child lives full time in the Community then she will be discouraged from having a relationship with her mother. Whilst some statements made by the father might support that view, I am not able on the evidence to find that the mother’s fears are reasonably held. The week about arrangement has been in operation for some time without there being any obvious discouragement of it by either the father or by the Community. I accept that the father’s pursuit of his application in this case is genuinely based on what he perceives to be the child’s strongly held convictions and views.

The need to protect the child from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

The father denies any physical assault on the mother and denies the mother’s allegations that he fostered a fearful environment. He also denies physically punishing the children beyond what is “permitted by law”.
The father said that the mother’s decision to leave the Community was based on her not getting along with another Community member. He claims that the mother said she feared she would cause him harm if the situation continued. The father said she did not leave as a result of the father’s treatment of her and told him she would always remain faithful to him. He mentioned that the issue of violence was not raised in the proceedings until December 2009.
The mother has made a series of significant allegations against the father in respect of family violence. The father denies that he has ever been physically violent to his wife and says that on the contrary it was the mother who had on occasions explosive outbursts where she was physically aggressive. The most serious allegation made by the mother is that she sustained a broken jaw at the hands of the father. In order to accept that that had happened, I would have to be satisfied on the Brigenshaw standard ((1938) 60 CLR 336; s 140(2) Evidence Act) on the evidence presented. The mother has not satisfied me on that standard that she sustained a broken jaw.
I find that the level of family violence between the parties falls somewhere between the two versions that have been given. The child had three opportunities to speak to someone independently about family violence. The child’s knowledge about violence in the community and her opinion of it were expressed to the child’s psychologist and extracted above.
The child did not disclose any violence to Dr R.
The child and I had the following exchange when we met one another:
“I remember him slapping her over the face, maybe just going with his fist, pushing – just pushing her, not punching her, just pushing her, yes.”
She demonstrated the fist by placing it under her own chin and pushing her chin upwards. I got the clear impression when the child was relating these words to me that she was talking about two different incidents. The child however was not describing a relationship between her mother and father that was characterised by regular events of family violence. The child lived in close proximity to her parents. It is likely that her report (particularly to her psychologist) would have been more fulsome had there been the type of violence as described by the mother in the relationship between the mother and father.
Community member Ms H gave evidence that she was violently assaulted by the mother when she was 12 years of age. The mother acknowledges that an incident occurred but denies that it was the severity alleged. I formed the impression that Community member Ms H had a very vivid memory of the event and I accept her evidence over the mother’s evidence as to what happened at that time. Her evidence is consistent with the mother’s other concession that she also was involved in heavily disciplining the children. Community member Ms H’s evidence confirms the father’s contention that at times the mother could explode in an angry and physical way.

The additional considerations

Child’s views (s60CC(3)(a))

The father stated that the child has told him ‘on many occasions’ that she wishes to stay with the Community, and that she wishes to remain home schooled.
The mother fears that any decision the child makes in relation to her life is dictated by the ‘brainwashing’ of the Community. She also says she worries that she is being pressured directly.
The child’s preference of living arrangements had changed over time.
An affidavit by the child’s psychologist records that the child had said on 28 November 2009 “I have a lot of friends out there, but they’re just always pressuring us, I don’t really like it. My dad’s always making it worse. I want to stay with my mum full time.” She said that she felt guilty that her proposed departure was lowering her family’s standing in the Community and she was willing to return to stop this. The psychologist concluded that the child was not making decisions that were in her own best interest, but was protecting her family within the Community, and she was too young for such a decision.

Later, the child verbalised her reasons for wanting to remain in the Community to the family consultant: she said there were role models there who would help her “grow up to be a strong Christian” (unlike her mother and partner), she feels safe and secure there, she has lived under their rules and practices all her life and she didn’t want that to change, and that it was unfair to expect her to uproot her life in such a way. The child spoke her preference for living with her father full time, and that she did not want to live in a half/half situation. She suggested she see her mother and brothers once a month. The child said if she was ordered to live with her mother she would run away and return to the Community.
The family consultant concluded that the child was capable of articulating her decisions and is distressed at the prospect of her reality having to change as a result of the mother’s decision to change her own life.
As previously mentioned, I had a conversation with the child with the family consultant present. I wished to gain an understanding of why the child changed her mind about who she wanted to live with, and if she was still determined to run away if she was placed with her mother.
The child has clearly expressed her views to me. She told me that the week about arrangement was not working for her and she wanted it stopped. She did not particularly want to choose between her father and her mother. What she wanted was to be able to live in the community with her father so that she was in an environment where she could better practice her beliefs.
Counsel for the mother made the point that the child, for a significant period of time now, has been spending one half of her time in her mother’s household and there has been no indication that her mother has in any way prohibited her from practicing her beliefs. Her mother, after all, lived a long period of time with the Community and understands the Community’s teachings and has not in any way sought to discourage the child from continuing to hold her own beliefs. Whilst I accept that is so, the child herself feels that she would be freer to practice her beliefs, in the Community, in North Queensland.
I find that the child has expressed a clear view that her preference is to live with the Community in North Queensland and that view is a very weighty factor that I have to take into account in considering what is in the child’s best interests. It is a weighty factor because the view has been clearly expressed by a child who is 14 years of age, and is intelligent and verbally articulate. I find that it is her own view and is not simply her parroting the view of any other person.
However, there is one aspect of the child’s view about what she wishes to do in her immediate future, that I do not believe is in her best interests. Her father, her brother and herself wish to go on a preaching mission for three months at a time (and for possibly two or three times a year). In her conversation with me, the child expressed a particular enthusiasm for this idea, however it seems not to be an idea that has been communicated widely within the Community. Certainly the leader was unaware of it. It seems clear from the other evidence I have that the leader would need to give permission for any such trip and agree that the Community would fund such a trip or trips. There are two reasons why it is not in the child’s best interests to be involved in such an extended way in such trips. The first is the difficulties I have referred to elsewhere in relation to the child’s current academic performance. The second is that the child expressed to me a strong desire not to lose her relationship with her mother. That view is to be contrasted with the father’s attitude that it would be in his view best for the child if her time with her mother was minimised as much as possible. The father indicated that if they did a road trip down the coast of New South Wales, possibly towards the Victorian border, that it would be financially impossible to transport the child back to North Queensland on a regular basis for her to be able to see her mother. For these reasons I find it is not in the child’s best interests for her to be free to be able to travel with her father and her brother on preaching excursions for up to three months at a time for two to three times a year. One of the father’s witnesses gave evidence about a preaching mission which is centred around the Northern New South Wales area. This however is not a nomadic mission, but rather one that has had a fixed location for a significant period. The evidence was that members of the Community come and stay for limited periods of time, in particular young members of the Community, come and stay during their school holidays. There is nothing to prevent the child going to such a mission during the part of the school holidays that the child will be spending with her father. I will however restrain the child from participating in longer periods away from North Queensland during school term. The child needs to see her mother regularly during school term and as I discuss below, she needs to go to a mainstream school.

Relationships of the child with the parents and other persons (s60CC(3)(b))

The consultant noted that the child spoke openly and noted that she did not love her mother or father any more than the other, but she did not like the mother’s de facto partner due to the sinful relationship he was living in.
The consultant observed that the child’s interaction with the mother in the interviews in April 2010 was ‘almost obligatory’ and spoke at a superficial level. Her interaction with the mother’s partner was ‘cursory’.
The consultant observed the contrast in the greeting of the child with her mother and father. Where she was ‘almost obligatory’ with her mother, the child greeted her father with a running hug. The consultant notes a ‘significant attachment’ to the father.
The child’s relationship with the mother’s partner was shaky. The child admitted she was “always really stroppy towards him”, was angry with him and would not smile at him. The child has previously said she does not want to live with him because of the sinful lifestyle he has introduced the mother into. The mother says that her partner helps the child with her schoolwork and that the child has no issue working with him. The mother’s partner says this is because the child arrives at their home with “her head full of what members of the Community have told her” and it takes a couple of days for her to relax and interact with the family.
In her conversation with me, the child described her current relationship with the mother’s partner. She told me she still has not accepted him as her mother’s partner. She said to me “he’s just an obstacle or something. I don’t know. He’s just something that I have to get over and just – like, now, I don’t really – It’s like I don’t care about him. I don’t care what he’s doing. I don’t – it’s my mum’s choice, it’s his choice. I don’t really care.” She explained that by ‘obstacle’ she meant to her mother’s Christianity. The child then told me the mother’s partner was not a ‘big priority’ in her thoughts, and she wouldn’t accept anything he wanted to give her or do for her, but she doesn’t mind to joke around with him. I find that the child’s relationship with the mother’s partner is characterised by tolerance, but is a less than ideal step-parent relationship.
The mother’s partner is very involved in the other children’s lives in the mother’s household and is committed to his relationship with the mother and her children.
In terms of interaction with other family members, the mother says the child enjoys seeing her brothers but does not want to spend a lot of time with them, nor they with her, but this is normal for siblings. The mother has 5 brothers and 2 sisters. She reports having a good relationship with all but two.
I note that the father does not have contact with Child C, Child E, Child H, Child I and Child D – all of whom have left the Community and some of whom live with the mother. The father claims he is considering promoting contact with the last three children named, but the others he has left undisturbed to promote stability and assist their disabilities. He also intends to ‘promote contact’ with Child D who has left the Community but lives nearby. Child G lives in North Queensland and the father says he has ‘regular and warm interactions with her’. Child F lives in the community as does Child B, although he wishes to move to the Central West NSW community.

Willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent (s60CC(3)(c), noting (s60CC(4))

The mother says that after separation the father went to great lengths to separate her from the child and the other children. The mother records one occasion when the father failed to return the child to the mother as arranged and had taken her to another settlement for an extended ‘gathering’. In response to this claim the father said that he collected the child from the mother on 26 December 2009 upon the child’s request. He then took her to the South Queensland settlement for a gathering and the mother only called four weeks later to ask about the child. At that time, the father said she would be returned in a few days. He says the child was returned on 26 January 2010 and at that time she told her father that she didn’t want to live with the mother and her de facto anymore. The father again collected the child on 29 January 2010 upon her request, and the mother called on 9 February 2010 asking when she would be returned. The father told the mother there was no arrangement and the mother threatened to call the police. The father says this was totally inappropriate.
The father recounts an incident of the mother failing to return Child H, the subject child and Child I on 29 November 2009 at the allotted time.
The mother’s partner recalls the father calling him to tell him he was living in sin and would burn in hell. The children have also told the mother’s partner that their father has told them this. The children have mentioned that they are “not allowed to be nice to [the mother] while she is committing adultery” and he says they are quite obsessed with the idea that she is living in sin, committing adultery, and will not ascend into heaven. The child also shares these views.
The mother said that the father did not allow her to see the older children when they were living with the Community.
It is not necessary for me to make findings in respect of whose version of conflicting events is more accurate, given that I find overall that the mother and father have both adopted a facilitative attitude towards the child spending time with the other parent, particularly in recent times.
The mother fears that regardless of how willing the father is to facilitate a relationship between the child and the mother, that ultimately that decision comes down to the leader and the Community’s rules, which the father has no say over.
The mother is worried that the leader will move the child to another community so that contact can be severed. The mother’s brother G also believes this is a real possibility, with the father having no power to stop it. Having heard the evidence of the father, his witnesses and particularly the evidence of the leader, I find that the mother’s fear in regard to the leader controlling the child’s behaviour is overstated, although I accept it is a genuine belief held by the mother.
There is in fact a greater risk that the child will be moved away from North Queensland for a considerable period of each year by her father. I have set out above the father and the child’s plans to go away preaching mission for three months at a time on perhaps three occasions a year and the order that I intend to make in that regard.
It is not so much the father’s attitudes that will possibly impede the child’s future relationship with her mother, but rather the child’s strongly held beliefs. As the family consultant opines however, if there is nothing inherently destructive in those beliefs for the child, then the mother should not expect that attitudes and beliefs that have been instilled in the child in her formative years whilst the mother lived in the Community will necessarily inform and shape the child’s behaviour in the future.

Likely effect of any change in the child’s circumstances (s60CC(3)(d))

The child has been exposed to life outside the Community while living week about with the mother, who said that the child has enjoyed the opportunities of ‘normal’ life with the mother, including television and music, and making decisions.
If the child was to lose her regular time in the Community her lifestyle would change dramatically. The family consultant advised that the child’s removal from the Community would likely result in distress to the child and that removal should only occur if the child is at risk of violence in the Community.
I am also mindful of the decision I have made that the child should not continue home schooling. The child undoubtedly enjoys the flexibility of living in the community and working academically at her own pace. For reasons set out elsewhere, the child’s education arrangements will need to change. That will be a change to which the child will need to adjust.
Removing the child from the community would add another level to the change that the child has to experience and I am mindful of the possible cumulative effect that multiple changes will have upon the child.

Practical difficulties and expense of the child spending time and communicating with a parent (s60CC(3)(e))

There is no evidence that there will be any particular practical difficulties or expense in the child spending time and communicating with each of her parents if she remains in North Queensland and does not move away.

The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs (s60CC(3)(f))

The child is home schooled with the Community through the Y College. Parents school their own children in the Community. The children participate in the subjects of Maths, English, Social Studies, Science and ‘word building’. For parents to teach the homeschooling they much do a short course and submit a written task. The mother says the marking is done by the Community ‘teachers’ and that often a child will do a question again and again before it is correct and then the marks are adjusted accordingly.
The mother says that no girl in the Community has attained a grade 12 or tertiary qualification. The father originally said that the child “probably has two years left [until completion of year 10] depending on how far she wants to go.”
The leader’s affidavit shows pictures of girls getting prizes at TAFE. The leader details at length the academic success of the Community’s children. This extends into very high marks at TAFE for numerous young adults (boys and girls). He also explained that children learn to work with machinery and farming as they grow up and so often don’t need further qualifications. Ex-Community member D explained that girls could go to TAFE, but had to choose from only fitness training, cookery or beauty therapy courses.
The father says the standard of schooling received through the Y College system is excellent and that the child is doing well. The father says he sits with the child and assists her in her schooling for three to four hours a day, although that evidence does not comfortably sit with the mantra that the father expressed on a number of occasions during his evidence to the effect that “the curriculum is the teacher”.
The mother said the child is not doing as well at school as the father insists. She says that the child struggles in maths and English.
In my interim reasons of 11 June 2010 I noted that “I have been provided today by the Independent Children's Lawyer with a copy of the child’s term 1 results. They seem to be excellent results. She has A-grades in all subjects, being in the high nineties in some of them.” What I did not realise at the time (and I assume the lawyers did not realise as it was not brought to my attention) was that the child’s Maths subject, coded as 1058, was not a year 9 level subject but rather at a significantly lower level (probably year 7 at best). Therefore the result actually demonstrated that the child was doing excellently at year 7 level only.A letter from the Y College of 28 October 2010 confirmed that the child was currently working on Maths unit 1070 “which equates to Year 6/7 level mathematics”.
For the first time shortly before the final stage of the hearing, the child did a public test. It was the national year 9 NAPLAN test. The child’s reading scores were below the national average but within the “range of achievement for the middle 60% of Year 9 students in Australia”. The child’s ‘Language and Conventions’ was also in that range, and sat above average. The child’s numeracy was in the lowest band, band 5, which is described as ‘below the minimum standard’. Even more disturbingly, the child’s writing score did not even reach the level of band 5 and was off the chart. A letter from the Y College of 28 October 2010 explains the poor mathematics scores in that “the concepts tested in the Year 9 NAPLAN test are not covered in our curriculum until Maths Unit 1085 and beyond. The child has not reached this level of work on our curriculum.” There is no explanation of her poor writing score.
The father’s attitude to these results is that the child should be able to work at her own pace and if it takes her a long period of time to complete her secondary education, then so be it. There is at the current time a disconnect between the child’s chronological age and her educational age. That is a problem for the child. The child indicated to me that she did not want to be a “dumb brush artist”. She wanted perhaps to take up nursing as a profession. The child is a mature thinker and it is not fanciful that her attraction to the nursing profession might be one that she follows, if her education standards permit that to happen.
Her current lack of educational standards arises in circumstances where she has lived through a period of approximately three years since her parent’s separation in circumstances where she has been going from one household to another on an alternate weekly basis during school term during most of that time. This has been very disruptive for her. She told me that in her mother’s household, her studies are from time to time disrupted because she goes into town with her mother. Her mother has indicated that she is unable in the future to be of significant assistance to the child in helping with her home schooling and I accept given what her mother is managing and the mother’s own level of education, that it is so. The mother has sought an order that the child go to a mainstream school if the child lives with her. She has also sought that the child that goes to another mainstream school if she is living with the father.
As a result of these proceedings, the leader issued a suggestion to communities throughout the country that children ceased to be home schooled and go to main stream schools during 2010. The motivation for issuing this communication seemed to be a fear that this case would throw a spotlight on the Community and attract the attention of child welfare authorities. The communication suggested to parents that sending children to mainstream schools would prove to the parents and to the world at large that the home schooling system was producing satisfactory standards. I have no objective evidence as to what the results of the NAPLAN tests were across the board in respect of all students of the Community. Some evidence was given by various witnesses for the father that certain individuals had performed excellently.

One important matter to note, however, was that it did not seem that there had been any difficulty with the children integrating into and being accepted into mainstream school or with the children being bullied at a mainstream school.
The child’s normal regime (as she expressed it to me) was that she would start work at about 8.30am and go through to about noon if she had worked diligently and through to 1pm if she had not. She then had the rest of the day free.
At the current time the child is the only person in the Community in the North Queensland settlement who is being home schooled.
The child went to school for about five days at her mother’s place and did not like it and ceased to do it.
The child however did say to me that she would abide by any order the court made. Whilst the child will not have the same experience that she would have on the farm doing other activities during school week, I think it is important at this stage of the child’s education that she focus more intently and for a longer period of time during the school day on academic activities. I understand that that will mean that there will be some travel time, but that travel time will hopefully be on a school bus and that social interaction will not be a disadvantage to the child. I therefore find that it is in the child’s best interests that she attend a mainstream school for the completion of her secondary education.
In relation to providing for the child’s physical and spiritual needs, I note in the Community, this is subject to Community resources and teachings. As outlined above, the mother said the food is not nutritional, the facilities are substandard and the spiritual teachings are oppressive. As I have found above, I am not satisfied that the mother’s complaints have been made out.

The maturity, sex, background and lifestyle of the child and parents (s60CC(3)(g))

The child is a delightful, mature and verbally articulate young person. Her mother asserts that she is socially inhibited but she confidentially spoke with me in an uninhibited way. The competing lifestyles being offered to the child have been fully described already and I refer to the findings I have already made in respect of them.

The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s60CC(3)(i), noting (s60CC(4))

Mother

The consultant’s impression of the mother was that she was concerned for the child’s wellbeing, and trying to appease her guilt at having brought her into the Community and staying there. The consultant noted that the mother did not fully appreciate the child’s desire to live with the Community, the psychological stress that may be involved in altering the child’s living arrangements, or the way she is imposing her decisions upon the child. The consultant notes the irony in the mother’s concern about the ‘controlling’ environment of the Community, when she is attempting to exert unwanted control over the child’s life.
The leader’s ex-daughter-in-law describes the mother as congenial and helpful, who loved and was patient with her children. She reports that she always cared for her children despite the difficulties and limitations of the Community, and was never angry or physically violent towards the children.
Ex-Community member Ms M similarly says that the mother exuded warmth and generosity, and that she never saw her hurt anyone.
The mother has taken on the primary responsibility of looking after the majority of the children of the parties whom have a significant disability. She cared for these children without any assistance from the father. Her efforts in that regard are admirable.
I do have some evidence that in the past the mother has, in the context of her relationship with the father and her position in the community, become angry and on at least one occasion that anger has led to the excessive use of force on a 12 year old girl. The child however has made no report whatsoever of her mother being physically violent to her.
The father recounts the issue with the train trip that the child took back from the Gold Coast with the mother’s partner. He said the mother’s decision to stay longer in the Gold Coast with her sister, leaving the child on the train with her partner was insensitive to the child’s concerns. The mother responds that the child enjoyed herself thoroughly on the holiday and that she was fine with the mother’s partner. On the way home the mother received a telephone call from her sister saying she had miscarried, and she asked the child if it would be “ok” that she leave to see her sister. The child reluctantly agreed. The mother left the train early and the mother’s partner had to join the children’s sleeping cabin under train protocol. This was deemed inappropriate by the father. The mother said that the child told her that he was “making a big deal” about it but that she had no issue with it. I note that the family consultant reports that the child mentioned this experience and said it was ‘inappropriate’ for the mother to have put her in that situation.

Father

The consultant’s impression of the father was that he is child focused, though somewhat dictated by the Community standards and beliefs. The consultant believes that it is a credit to the father that he is willing to acknowledge that his disabled sons are better living solely with the mother than having the disruption of shared care. The consultant was also impressed by the father’s support of the child’s desires to stay in the community and his willingness to act to achieve this for her. The consultant feels that the father’s derogatory remarks of the mother are inappropriate.
The mother is concerned that the father is unable to make decisions about the child’s welfare, where the leader exerts total control over the Community and where others are overseeing the children.
In response to the mother’s claim that the children’s upbringing is based on the leader’s decisions, the leader says that Community members do make decisions, especially about their children. He says that the mother and father had chosen their children’s education and the schools they went to. According to the leader no-one is forced to do anything they do not want to do. I accept that the leader does not involve himself in the day to day decisions about the care, welfare and development of children in the Community.
The mother questioned the father’s parenting of Child B, who is disabled and was living in the Central West NSW settlement of the Community from January 2008 to early 2010. The father stated in his June 2010 affidavit that while Child B is currently back in North Queensland, the father intends to allow him to return to the Central West NSW settlement. An affidavit by the father’s brother explains that it was both the mother and father’s decision to allow the move. He said that Child B participates well in the community and is competent in the tasks he undertakes, and that he spends two days per week with the local disability service.
The mother recalls one occasion when she saw her disabled son Child E (then aged 23) on the Community’s bus in town by himself. She took him home with her that day. The father is critical of this as the mother did not let anyone know and the police were called in. Community member Ms L was the bus driver that day and swore an affidavit about the incident. He said that Child E preferred to stay on the bus and listen to music. He had been given a meal and knew where the fruit drink was, and was not sitting in the sun. There were windows open and he was in no danger.
The parties’ son Child F swore an affidavit and gave oral evidence in these proceedings. He favourably recalled his childhood with the Community where he played basketball and did boxing. He says he was only disciplined by his parents, and then it was only a small smack to the bottom and only prior to turning twelve. He said he received 14 fillings at one stage, but not for lack of medical or dental check-ups, but rather from drinking large amounts of energy drink while on his apprenticeship. Child F today is a committed member of the Community. He gave evidence in his father’s case against his mother, motivated very much by his view that his mother had launched a concerted attack on the beliefs and practices of the Community to which he was committed. He has very much seen that as a personal attack on himself. He and his mother are currently estranged.

Any family violence involving the child or a member of the child’s family (s60CC(3)(j) and(k))

There has never been any family violence order in this matter. Issues of family violence have been already discussed.

Likelihood of order leading to further proceedings (s60CC(3)(l))

I am mindful of the fact that the orders that I am making restricting the child’s movements and requiring her to go to a mainstream school are not in accordance with her expressed views. She has however indicated to me that she will not take the law into her own hands and will respect the fact that the decision of the court is one based on an assessment on what is in her best interests. The child is a respectful young person and I take that into account when assessing whether or not the orders that I am making are likely to lead to further proceedings.

Any other fact or circumstance that the Court thinks is relevant (s60CC(3)(m))

There is no other matter that I need to consider.

Conclusions as to best interests

I find that it is in the child’s best interests to live with her father and the Community and maintain close contact with the mother.

EQUAL SHARED PARENTAL RESPONSIBILITY

Each of the parents seeks an order for sole parental responsibility of the child in their respective favour. The Family Law Act provides a presumption of equal shared parental responsibility.
The mother and father now have totally different lifestyles and beliefs.
After separation the father sent the mother letters describing her as an adulteress and explaining the duties of a wife. In them he said that she would burn in hell. These letters are annexed to the mother’s primary affidavit.
The mother says there is no possibility of shared parenting. She says that the father is not able to make any decision without the leader’s permission.
The parents currently have no communication with one another and it is unlikely that that situation will change any time in the foreseeable future.
Section 61EA(4) FLA provides that the presumption of equal shared parental responsibility may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. That evidence exists in this case.
I conclude that I need to provide that one of the child’s parents has sole parental responsibility. The child will be primarily living with the father and consequently I find that it is in the child’s best interests for the child’s father to have sole parental responsibility.

PROPOSED ORDERS

The father’s position in final submissions was that no order should be made defining the child’s time with her mother and that it should be left to the child to indicate when it might be that she would see her mother. That proposal in my view puts the child in an invidious position. She will be living with the Community in circumstances where she is well aware that her father’s view is that she should spend as little time as possible with her mother. There will be far less pressure on the child and the child’s time will be far more certain if that time is defined.
The father also sought four to five weeks during the long term Christmas holidays so that he and the child could go to the annual gathering of the Community.
The mother’s suggestion by way of compromise in relation to that issue was to have alternate years where the child would spend four weeks with her and two weeks with her and alternatively two weeks and four weeks with the father. When she is spending four weeks with the father she will be able to attend the majority of the time that the gathering happens. The father did not specifically comment upon the mother’s alternative proposal. It does mean that the child will miss the gathering every second year. On balance I find that the Independent Children's Lawyer’s proposal is the better one, and that is that unless the parties otherwise agree in writing, the child share one half of the school holidays with each of the parents. This means that each year will she be able to attend the gathering for at least some of the time. It may be however that this is an area where the parties might be able to have further discussions and reach a more specific compromise (in writing) that might fit in with the timing of this event each year (say for example The child could be there for the beginning of the gathering even if she does not stay the whole time). If the parties are unable to agree, then the order I make should be complied with.
The father has sought a specific order that the child be provided with her own room in her mother’s home should she stay overnight with her mother. The only evidence relevant to that application was about one occasion (not in the mother’s home but on a train) when the child was required to sleep on a bunk at the same time that another boy of about her age slept in another bunk. I find that the father’s concerns arising out of that particular event are not sufficient to require an order of the nature that he sought in his written application.
The Independent Children's Lawyer has sought an order that for a period of twelve months and pursuant to s 65L Family Law Act, compliance with my orders, as far as practicable, be supervised by a family consultant who shall give such assistance as is reasonably requested by a party to carry out these orders. Given that I have in part made orders that do not fully accord with the child’s expressed views, I think that it is appropriate for that facilitative supervision to be available. The Independent Children's Lawyer has also asked that her appointment not be discharged until the period of supervision has expired and I am prepared to make an order to that effect.

I certify that the preceding two hundred and forty three (243) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 7 December 2010.

Associate:

Date: 7 December 2010

[2010] FamCA 1113

7 December 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness

Jurisdiction

Remedies

Appeal