KALA & KAMDAR (No.2)

[2020] FCCA 2503

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALA & KAMDAR (No.2) [2020] FCCA 2503

Catchwords:
FAMILY LAW – Parenting – asserted family violence – Family Report.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC

Evidence Act 1995 (Cth), s.97

Cases cited:

Jones v Dunkel (1959)101 CLR 298

Briginshaw v Briginshaw (1938) 60 CLR 336

Galea v Galea (1990) 19 NSWLR 263

Fox v Percy (2003) 214 CLR 118

Applicant: MR KALA

Respondent: MS KAMDAR

File Number: MLC 13612 of 2017

Judgment of: Judge McGuire

Hearing dates: 3, 4 & 5 August 2020

Date of Last Submission: 5 August 2020

Delivered at: Melbourne

Delivered on: 10 September 2020

REPRESENTATION

Counsel for the Applicant: Mr R McCloskey

Solicitors for the Applicant: Marcou & Associates Pty Ltd

Counsel for the Respondent: Ms E Mallett

Solicitors for the Respondent:	Danielle Webb Lawyer
Counsel for the Independent Children’s Lawyer:	Ms C Paterson
Solicitors for the Independent Children’s Lawyer:	CMB Legal

ORDERS

1. That the mother and the father have equal shared parental responsibility for the child X born in 2016 (“X”).

2. That X live with the mother.   

3. That X spend time with the father as follows:-

   (a)Each Thursday from 3.00 p.m. or the conclusion of kindergarten/school to 6.00 p.m.

   (b)On weekends as follows:

   (i)Each Saturday from 9.00 a.m. to 1.00 p.m. for three consecutive weeks;

   (ii)Thereafter each Saturday from 9.00 a.m. to 5.00 p.m. for three consecutive weeks;

   (iii)Thereafter each alternate Saturday and Sunday from 10.00a.m. to 4.00 p.m. on each day for three consecutive weeks;

   (iv)Thereafter and until the commencement of the school year 2022 each alternate weekend from 10.00 a.m. Saturday until 5.30 p.m. Sunday;

   (v)From the commencement of the school year 2022 each alternate weekend from the conclusion of school on Friday or 3.30 p.m. if a non-school day until 5.30 p.m. on Sundays;

   (vi)From the commencement of the school year in 2022 for one half of each Victorian gazetted school holiday period as agreed between the parties and failing agreement then for the first half of such holidays being from the conclusion of school on the Friday or 3.30 p.m. until the second Saturday at 12.00 noon and for these purposes Thursday and weekend time for X with the father be suspended during school holiday periods;

   (vii)From the end of the school year in 2022 during each gazetted summer school holidays for one half of such holidays being on a week about basis as agreed between the parties and failing agreement then for the first week of such holidays and each alternate week thereafter and for these purposes X’s time with the father on weekends and Thursdays be suspended.

   (viii)On special days and further time or variations of the above as may be agreed between the parties from time to time.

4. That changeovers for the purposes of X spending time with the father take place at such venue or venues as agreed between the parties from time to time but failing agreement then at the appointed times at the Suburb B Children’s Contact Centre and for these purposes the parties each prudently complete all interviews and applications necessary for this to occur.

5. That there be communication between X and the parent other than the parent she is currently with by Skype/FaceTime each Monday between 5.00 – 5.30 p.m. with the father to initiate such calls on all occasions and each parent to ensure that X is available and to facilitate her answering and participating in such communications.

6. That the mother and the father each be and are hereby restrained from abusing, belittling, insulting, rebuking or otherwise denigrating each other, or any family members of each other, to or in the presence or hearing of X and from permitting any other person to do so.

7. That each of the parents keep the other informed and updated as to their contact details and residential address and for these purposes the father is to keep the mother informed of the primary residential address for X during any time that she is in his care.

8. That the father and the mother communicate about the care, welfare and development of X through the App My Family Wizard or its equivalent. 

9. That each of the parties MR KALA and MS KAMDAR and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X born in 2016, female (“the child”) from the Commonwealth of Australia.

10. That the child be and is/are hereby restrained from leaving the Commonwealth of Australia.

11. That it is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia (“the Watch List”) and maintain the child’s name on the Watch List for a period of five (5) calendar years.

12. That upon expiration of the period referred to in Order 11 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s names from the Watch List. 

13. That the parties each have liberty to apply in respect of the removal of the Airport Watch List order either temporarily or permanently and for the purposes of anticipated travel with X out of the Commonwealth of Australia.

14. That the mother prudently authorise and direct X’s child care, kindergarten and/or school to provide the father with all usual notices, newsletters, reports, photographs (at his expense) and other information usually provided to parents.

15. That to any extent that these orders in any way conflict with the terms of any final Intervention Orders in case no. ... dated 23 July 2019 then this Court declares that the terms of these orders take precedence pursuant to s.68Q of the Family Law Act 1975.

AND IT IS NOTED:

1. That if after the expiration of the period set out in Order 11 above any parent seeks that the child’s name remain on the Watch List for a period beyond the period specified that party must file and serve an application in this Court or the Family Court of Australia together with an affidavit setting out the evidence which supports that application.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT LAUNCESTON

MLC 13612 of 2017

MR KALA

Applicant

And

MS KAMDAR

Respondent

REASONS FOR JUDGMENT

Applications

1. These are parenting proceedings in respect of the parties’ child X born in 2016 (aged four years).

2. The father is the applicant.  Until shortly before the trial in this matter the father was seeking orders whereby X live in a shared care arrangement between him and the mother together with equal shared parental responsibility. He is not now so ambitious in his application.  He continues to ask for an order for equal shared parental responsibility.  However, he now concedes that X live primarily with the mother.  He proposes that he spend the time with his daughter on a graduated basis leading to each second weekend between Friday and Sunday (or perhaps Monday morning) together with a meal on one night each week.

3. The mother's position has also changed and did so during the course of the evidence with her final position articulated by her Counsel in final submissions.  Initially, she asked for X’s time with the father to be limited and supervised either at a contact centre or by professional supervisor and such to be paid by the father for times ‘as can be accommodated by the supervisor on alternate weekends for up to 5 hours'.  She sought sole parental responsibility for X.  In an aide memoire tended to the Court to at the commencement of her final address, the mother's Counsel asked for orders as follows: –

   (i)That the mother have sole parental responsibility for X subject to notification provisions to the father;

   (ii)That X live with the mother;

   (iii)The father spend time with X as follows:

   Until X has completed Term 1 of her Foundation Year of full time schooling;

   a.supervised by a professional service for up to 4hrs per week (with the time and days to be as can be accommodated by the supervising service and funded by the father).

   From the Term 1 School holidays following a. above: for a period of 8 weeks:

   b.once per week for 4hrs without the need for supervision at times and dates to be agreed but in default of agreement from 10am until 2pm each Sunday;

   thereafter, for a further period of 8 weeks:

   c.from 10am until 6pm each alternate Sunday;

   Thereafter:

   d.from 4pm Saturday until 4pm Sunday each alternate weekend; and each alternate Wednesday from the conclusion of school until 6pm

In addition to the provisions a-d above

e.By Skype/FaceTime one weekday evening per week between 5-5.30pm with the father to initiate the call and the Mother to ensure that X is available and facilitate her in answering and participating.

f.such other and further time and communication as may be agreed between the  Mother and the father in writing, including by SMS.

1. The mother asks for specific injunctive orders in respect of family violence and physical punishment of X.  She asks for an order that the father be ‘in substantial attendance’ and an order that he 'to provide X with appropriate and adequate food'.

2. The mother asks for an order for X to obtain an Australian passport and that she be permitted to take X on holiday to India or other overseas destination conditional only upon providing the father with six weeks written notice and a copy of an itinerary and return airline ticket.

3. The Court has had the benefit of an Independent Children’s Lawyer represented by Ms Paterson of Counsel.  At the commencement of the trial the Independent Children’s Lawyer proposed the following orders:

   (a)The father and the mother have equal shared parental responsibility for the child X born in 2016, aged three years old bracket ('X'). 

   (b)X live with the mother.

   (c)X spend supervised time with the Father at the C Family Services in Suburb B each Thursday from 4.00 p.m. to 6.00 p.m. 

   (d)The parties communicate with one another in relation to arrangements for and care of X via Family Wizard or MyMob.

4. On the third day of this trial and following the taking of the evidence, the position of the Independent Children’s Lawyer had also changed substantially to now asking for orders as follows: –

   (a)That the mother have sole parental responsibility for X subject to notification conditions;

   (b)That X live with the mother;

   (c)For the purposes of any time spent by X with the father, the Court declares that the father's primary residence is D Street, Suburb E (‘the father’s residence’);

   (d)X spend time with the father as follows:

   (i)From 5 August 2020 until the making of final orders, for up to 4 hours per week supervised by a professional supervisor at the father’s expense.

   (ii)    On a final basis as follows:

   (aa)Each Wednesday from 3pm or the conclusion of kindergarten/school to 6pm.

   (ab)  On weekends as follows:

   (A)    each Saturday from 9am to 1pm for three consecutive weeks; and thereafter

   (B)    each Saturday from 9am to 5pm for three consecutive weeks; and thereafter

   (C)    each alternate Saturday and Sunday from 10am to 4pm for a period of three consecutive weeks; and thereafter

   (D)each alternate weekend from 10am Saturday to 6pm Sunday.

   (ac)By Skype/FaceTime one weekday evening per week between 5-5.30pm on a day to be agreed in writing between the parties but in default of agreement a Monday with the father to initiate the call and the Mother to ensure that X is available and facilitate her in answering and participating.

   (ad)such other and further time and communication as may be agreed between the  Mother and the father in writing, including by SMS or via a communication app.

   (e)The father and the mother, their servants and agents, be and are hereby restrained from:

   (i)    using or threatening physical punishment with respect to X;

   (ii)    exposing X to family violence towards her any other person;

   (f)that the mother and father be and are hereby restrained from abusing, belittling, insulting, rebuking or otherwise denigrating each other, or any family members of each other, to or in the presence or hearing of X and from permitting any other person to do so.

   (g)when X is in the father's care, the father must:

   (i)be in substantial attendance;

   (ii)    stay overnight at his residence as defined by these orders during any time when X is in his care overnight;

   (iii)   provide X with any medicine/treatment that the mother notifies the father that X requires;

   (iv)    notify the mother prior to taking X to receive medical treatment, save in the case of emergency when he is to notify the mother as soon as practicable and provide her with the name and contact details of the treating medical professional;

   …

   (h)upon obtaining her Australian citizenship, the mother may apply, without the need for the consent or signature of the father for an Australian passport for the child X born in 2016 (‘female’) and may provide a copy of these orders as an authority for the same.

   …

   (i) to the extent that these orders in any way conflict with the terms of the Final Intervention order case no. ... dated 23/7/2019, the court declares that the terms of these orders take precedence. 

5. In summary therefore, it appears that the father has made some concessions near to the commencement of the trial in respect of X living primarily with the mother.  Secondly, but after hearing the evidence, it seems that both the mother and the Independent Children’s Lawyer are seeking less conservative and restrictive orders in respect of X’s time with the father. 

Background

1. The father is 40 years of age and the wife 34 years.  The father is apparently self-employed or in a family business as a tradesman.  The mother works as an allied health worker having obtained tertiary qualifications in India. 

2. The marriage of the parties appears to have been an arranged one either through families or via social media.  The parties commenced their relationship or married within days of actual meeting.

3. Both parties are of Indian origin.  The father had been resident in Australia for some time.  The mother arrived in Australia in 2014 and the parties commenced immediate cohabitation.

4. X was born in 2016.  She is four years old.

5. The parties had a second child, Y, born in 2016.  Tragically, Y died of SIDS in 2017.  It is reasonable to note, following my hearing of the evidence in this matter, that each of the parents has and remains significantly distressed by the loss of their daughter.

6. The parties separated on 21 December 2017.

7. The father commenced proceedings in this Court on the day following the separation being 22 December 2017 with an ex parte application placing X’s name on the Airport Watch List.

8. On 29 January 2018 Orders were made for a Commonwealth Information Order to locate to the whereabouts of the mother with the implication being that X had remained with the mother following separation of the parties.

9. The father has an older son, E, who is 10 years old and born from the father's previous marriage to Ms F.  The father apparently currently spends no time with E although in his evidence the father mentioned ongoing litigation.  The material before this Court suggests that E suffered an injury at his school and was hospitalised and at the hospital made statements to the effect that he was fearful of his father and may have suffered violence at the hands of his father.  The Department of Health and Human Services became involved.  E’s mother obtained an intervention order against the father.  There is no evidence of any positive action taken by the Child Protection authorities or Victoria police.  The father has consistently denied any violent behaviour by him towards E. Whilst the documents from the Department of Health and Human Services and a hospital were tendered in evidence in respect of E, it is notable that neither the mother nor the Independent Children’s Lawyer saw fit to adduce evidence from E’s mother. 

10. On 26 February 2018 an Independent Children’s Lawyer was appointed in this matter together with procedural orders for the mother to file answering documents.

11. On 9 April 2018 the mother obtained an interim intervention order from the state Courts naming X as an affected family member.  The evidence suggests that the interim order was made final for one year and then extended for five years on application by the mother but without appearances or admissions by the father on each occasion.

12. On 12 April 2018 this Court made interim orders for X to spend time with the father supervised by a family contact service twice per week for three hours extending to a minimum of five hours twice per week.

13. On 12 July 2018 further interim orders were made inter-alia for X to spend time with the father on two occasions per week for periods of five hours with changeovers to occur at a contact centre but otherwise such time to be unsupervised.  Those orders were made with the consent of the mother and the Independent Children’s Lawyer.

14. On 29 October 2018 further interim orders were made by consent for X to spend time with the father graduating to each alternate weekend from 10.00 a.m. Saturday until 5.30 p.m. Sundays such time was unsupervised.  An order was made on that day for a family report.

15. The parties attended upon Dr G, social worker, on 17 May 2019 for the report interviews.

16. On 9 September 2019 the mother advised that she would no longer be complying with Court orders for X’s time with the father.  She filed an Application in a Case on 14 October 2019 asking for orders suspending the extant interim orders 'pending further hearing in receipt of a report from the Department of Health and Human Services'.  The mother alleged that she had been contacted by E’ mother alleging that the father had assaulted E.  The mother says that she was contacted by Child Protection and advised that X 'was at significant risk'.  The father, representing himself, filed an affidavit denying any abuse of E and alleging 'parental alienation' by E’s mother.

17. On 13 November 2019 her Honour Judge Baker made orders inter-alia listing the matter for mention on 12 December 2019 and suspending extant interim orders for the father with X and replacing them with orders pending 'the adjourned date':

    (a)The father shall spend time with the child each Saturday for a period of no less than two (2) hours; and

    (b)The time in order (8) (a) above will only proceed at such supervised contact centre as can be agreed between the parties in writing.

18. The father was self-represented at that interim hearing.

19. When the matter came before her Honour Judge Baker on 12 December 2019 it did so in Chambers and without appearances by or on behalf of any of the parties.  Her Honour made an order allowing inspection of DHS documents in respect of both E and X.  It appears, therefore, that her Honour’s interim orders made 13 November 2019 ‘pending the adjourned date’ simply continued in their operation.

20. That father's lawyers filed a Notice of Intention to Withdraw on 20 February 2020 but apparently had not acted for him in the last two months of 2019.

21. The family report was prepared and dated 24 May 2019.  Interviews for that report were conducted on 17 May 2019 being interviews with each of the parents and observations of X with each of the father and mother.  No other persons were interviewed.

22. The matter had been listed for trial to commence 2 March 2020 but orders were made vacating the trial date and adjourning it to 3 August 2020.

1. The Court file discloses that the interim orders of 13 November 2019 seem to have continued without further application or Court intervention until the trial of this issue.

2. On 2 March 2020, and when vacating the trial date, her Honour Judge Baker made an order pursuant to section 102NA of the Family Law Act for the father to be represented. He is now represented by Mr McCloskey.

3. The trial in this matter proceeded over three days of evidence on 3, 4 and 5 August 2020.

The Issues

1. The issue here is whether X’s time with the father needs to be supervised in a graduated scheme in the short term on the mother's argument that the father presents as some form of unacceptable risk to the child by reason of propensity for physical violence and/or emotional and coercive family violence as she says was a inflicted on her.

2. There flows from the above, an issue as to whether or not the presumption of equal shared parental responsibility is rebutted or, alternatively, whether the presumption not apply as not being in the best interests of X.

3. The mother has raised an issue, and one apparently adopted by the Family Reporter, as to whether or not the father's extended family and, in particular, his mother has perpetrated 'family violence' in the sense of controlling behaviour and therefore whether the paternal grandmother's relationship with the child should be restricted or conditional.

4. There remains the issue of whether the mother should be effectively granted a licence to travel overseas with X subject only to a six-week notification condition to the father.

The Evidence

The Father

1. Mr Kala gave evidence on affidavit and was cross-examined.  He denied all of the mother's accusations of family violence.  He deposed to a good and loving relationship with his daughter.  He was at times critical of the mother and indeed suggested a propensity in her for family violence or inappropriate disciplining of the child.

2. The Mr Kala was not a good or convincing witness.  His evidence in cross-examination was frequently elaborate and expansive.  He tended to deflect from the question and to give long-winded but non-responsive answers in cross-examination.  He appeared at pains to impress the Court but his demeanour was such that his evidence often lacked credible reality.  In this sense, I accept the submissions of Counsel for the Independent Children’s Lawyer that the father's evidence came across as contrived and disingenuous.  Indeed, his demeanour in the witness box and his attempts to control the process of cross-examination did, in fact, give some credence and corroboration to the cases of both the mother and Independent Children’s Lawyer that Mr Kala has a propensity for controlling behaviour. 

The Mother

1. The mother gave her evidence in a responsive and direct fashion.  Whilst English is not her first language, she appeared confident in her responses although her demeanour exposed something of a timid personality.  The mother's responses were informed and consistent.  My observations of the mother in the witness box were of a personality perhaps consistent with her claims that there may have been a power imbalance within her relationship with the father.

Dr H

1. Dr H is a psychiatrist.  She gave evidence by subpoena issued at the request of the Independent Children’s Lawyer.  Dr H’s evidence is effectively unremarkable.  A letter from Dr H to the father's general practitioner of 3 November 2019 was tendered in evidence[1].  The referral and assessment appear to be as a result of recommendations made in the family report.  Dr H states the following in her letter:

   [1] Exhibit No: ICL 3

   Thank you for referring Mr Kala for Pychiatric assessment.  I assessed him at J Consulting suites.  He is a 39 yr, who works in his parent’s business.  He was married twice, currently a divorcee, and a father of a three-year-old child.

   He has lost a child in 2017, who was just three months old.  He is of Indian background and migrated to Australia over 10 years ago.

   He also has a 10-year-old child from his first marriage.

   It was difficult to get ay ( sic) reliable information from him, however, his mother confirms the information he was given especially in relation to the abuse involved in his first marriage as true. (his ex-wife has been physically abusive towards him).

   It seems both his ex-wives has (sic) taken intervention orders against him.

   There is a pending Court case over the custody of his youngest child.

   He denied any problems in sleeping, eating, concentration, energy, motivation, mood or thought patterns.  He denied any anxiety.  He denied any thoughts of harming himself or anyone else.

   He said he is seeing a Psychologist for couple counselling.

   He was seemingly mentally well.  It was difficult to make any judgment on his current situation and its impact on his mental state, as he denies any problems with his mental state at present. 

2. The evidence suggests that Mr Kala consulted with Dr H on only two occasions.  The letter from Dr H suggests the paternal grandmother also consulted with Dr H.

Dr G – family reporter

1. Dr G’s family report is dated 24 May 2019 prepared after interviews with the parties and observations of them with the X on 17 May 2019.

2. Dr G is a Regulation 7 family consultant although she describes herself and her resume as a ‘Regulation 7 welfare officer’.  That resume discloses that she has consulted as such for the 'Family Court; Federal Magistrates Court' since 1995.  Her only other current employment is with Victoria Legal Aid as 'Child Consultant, Victoria Dispute Resolution service’.

3. Dr G has social work qualifications.  She obtained a PhD in her field from the University of Melbourne in 2008.

4. At the conclusion of her report, Dr G makes the following recommendations:

   (a)That X lives with the mother.

   (b)That the father's time spent with X is contingent on him and his mother (my emphasis) attending counselling.  Research on family violence in the Indian community highlights the need to order that men who have committed family violence must attend therapy and if needed additional members of the extended family.  Given the risks posed by the father and his mother, it is recommended that they both attend therapy, with an option such as Dr K.  Dr K will need to be contacted prior to orders being made to ensure she has not provided counselling to the mother.  If that is the case, she could be consulted about an appropriate referral.

   (c)The orders for the parties to continue to have equal shared parental responsibility is also contingent on the father and his mother attending counselling.

   (d)X would benefit from spending more time with the father but only after the father and his mother have engaged in counselling and there is demonstrated change in his attitudes and behaviours toward addressing the family violence.

   (e)That the father's counsellor provide feedback to the ICL about his and the grandmother's progress.

   (f)That the parties engage in counselling to develop co-parenting strategies.  This should only take place after the father and his mother have engaged in counselling.  A recommended counsellor is Mr L, Indian family Relationship Services, Ph: …

   (g)That the mother engages with M Multicultural Centre Against Family Violence, to provide her with further support in her parenting role within the context of the current court proceedings.

   (h)That the matter is adjourned to review the parties’ progress and the level of risk posed by the father and his mother before any consideration is given to changes in the orders.

   (i)That the whereabouts of X’s passport is established and that it be placed in an agreed location, as determined by the court.

   (j)That consideration be given to the mother and X being permitted to travel to India if the mother so chooses, contingent on her providing an itinerary to the father and her departure and arrival back to Melbourne.

5. It is clear from the tenor of the evidence and cross-examination of the father that the mother, her legal representatives, and the Independent Children’s Lawyer all place great store in the recommendations of Dr G and her process, methodology and conclusions reached in the text of the family report.  I do not share those views as to the probity or usefulness of this family report.  Having being a judge in this Court for some years, I am commonly well assisted by the family report tool where I receive evidence from experts in appropriate child-related social sciences who are able to give me objective, informed evidence of observation and opinion relevant to the difficult balancing determination as to a child's best interests in respect of their living and parenting arrangements. Unfortunately, this report, in my view, does not pass the test of being 'expert', objective or properly informed and, in the evidentiary sense, is of little utility.  Specifically, the flaws in this report and its methodology include the following:

   (a)Dr G’s recommendation at (b) is worthy of repetition where she says ‘that the father's time spent with X is contingent on him and his mother attending counselling.  Research on family violence in the Indian community highlights the need to order that men who have committed family violence must attend therapy and if needed additional members of the extended family.  Given the risks posed by the father and his mother, it is recommended that they both attend therapy with ….’  Significantly, and firstly, Dr G made this recommendation without seeing fit to interview the paternal grandmother.  Secondly, and importantly, cross-examination disclosed that Dr G’s 'research’ was confined to her making a telephone call to a therapist.  Dr G has not met that therapist.  It seems that she has had no professional background contact with that therapist.  She conceded that she located the therapist through 'Google'.  That same therapist is now recommended to counsel the father and the grandmother.

   (b)Each of these parents make allegations and assertions against the other broadly within the definition of family violence.  Dr G (properly in my view) put the mother's allegations to the father for his comments.  Consistent with his affidavit material, he denied the mother’s allegations.  There is no material before me and apparently none before Dr G suggesting that he had otherwise made admissions or statements contrary to his denials.  Nevertheless, Dr G moved to opine, therefore, that his response to her could be interpreted in only two ways being, firstly, that his denial of the allegations is consistent with him being guilty of the mother's assertions that he is a perpetrator of family violence and that such is compounded by the fact that he has not made admission or acknowledgement.  Secondly, Dr G opined that should the father have admitted his guilt in respect of the mother's allegations of family violence then he would, of course, still be labelled a perpetrator of family violence but apparently then one on the road to rehabilitation.  It was put to Dr G that there would be a third possibility namely that the father was telling the truth in his denials. My observations of Dr G were that she was unable or unwilling to entertain this possibility.  It must follow as a matter of logic, therefore, that I have serious concerns as to pre-determination by Dr G in respect of the mother's allegations that the father is a perpetrator of family violence. 

   (c)The father also makes allegations of family violence, within the broad definition, against the mother.  Nevertheless, Dr G did not put to the mother for her response those allegations made by the father.  Dr G’s explanation for not doing so was unsatisfactory and unconvincing and therefore reinforces my view that she has reached a pre-determination of the father being a perpetrator of family violence and hence, in my view, the objectivity of her report suffers accordingly.

6. Consequently, and in circumstances where a major issue between these parents is one of family violence in its physical and coercive forms, I can glean no assistance from this family report where I conclude that Dr G’s report unfortunately suffers from criticisms of both racial and gender generalisations.

7. Despite what I see as serious flaws in an evidentiary sense in the family report and its methodology, there are aspects of the report that I do find valuable but where, for reasons which escape me, Dr G seems to have given little weight in the balance against her views that the father is a perpetrator of family violence and fits a particular racial profile accordingly.  Specifically, however, Dr G reports on observations of X with the parents.  They are enlightening and, with respect, perhaps worthy of greater emphasis than they were given.  The report from [93] states the following under the heading ‘OBSERVATION OF THE CHILDREN (sic) WITH THE PARENTS’:

   [93] The child was observed in an unstructured environment in the waiting room.  She was observed to thoroughly enjoy her time with her father…

   [94]X loved the animation in their play and responded well in this context.  The father was unable to manage X’s anxiety and distress at the suggestion that she leave that space and come into to the writer’s office.  He continued to play with X in the waiting area.  They played a number of activities and X was very interactive and capable.  She enjoyed these activities and responded well to the father's guidance.  She knew her colours and was very industrious in her play.  The father was very affectionate and attentive to her needs. 

   [95] X would not separate from the father to play with the mother.  The mother joined X and the father (my emphasis).  The mother fed X and encouraged her in her play.  X happily went between the parents to have her needs met.  The mother played a more passive role feeding X whilst the father continued to play.

   [96] X became upset when asked to pack up.  The parents seem to lack the confidence in managing her behaviours.  They acquiesced to her demands and seem to flounder when setting limits.

   [97] X became extremely distressed when the father was due to leave.  She demanded that he stay and was inconsolable.  The father did leave but was unable to manage X’s distress.  Both parents seemed unable to enable X to say goodbye, leaving her in a very distressed state.  The mother eventually calmed her down and engaged her in packing up the toys.  She continued to look out for her father after his departure. 

8. From my reading, the above seems to be focused on the father's time with X and is relatively silent as to the authors’ observations of the mother with X.  This is yet another example of a lack of balance in this report.

9. Notably at [95] above Dr G states simply that 'the mother joined X and the father'. Nevertheless, in cross-examination Dr G volunteered that she observed the mother to be 'fearful and intimidated’ in the presence of the father.  In the context of the dispute and issues between these parents, this would ordinarily seem to be an observation worthy of inclusion in the family report but oddly does not feature.

10. In summary, therefore, I remain unconvinced by the recommendations of Dr G and concerned as to her methodology and preparation of this report which has aspects of pre-determination as well as other flaws mentioned above.

Credit

1. In circumstances where neither party has adduced corroborative evidence and where the mother's allegations rest in a large part on assertions of violence of a coercive type, issues of credit come to the fore in my determination. Of some real concern is that the mother apparently relies on the hearsay allegations in respect of the father allegedly perpetrating violence on his older son.  She gives no explanation for not adducing evidence from that child's mother, save and except the suggestion that the two women have not historically been on good terms but where nevertheless, the mother appears to have come by this information through the father's ex-wife.  Similar criticism might be brought against the father in not adducing evidence from his own mother and, in particular, where the family reporter makes recommendations that the paternal grandmother attend counselling before the child can spend time with the father.  In respect of both issues, and where there are no satisfactory explanation is given for not adducing such apparently available evidence, inferences are open to me under the principle in Jones v Dunkel[2].

   [2] (1959)101 CLR 298

2. In any event, and despite the principle of the child's best interests being the paramount consideration remaining the fundamental basis of my consideration, it remains trite to emphasise, as in any Court, that a person making an assertion of fact has an onus to prove that fact.  It is not, and certainly should never be, the case that a party has an obligation or an onus to prove their 'innocence'.  Arguably, in any event, it is a logical and evidentiary impossibility to prove a negative.

3. The standard of proof applicable is one of on the balance of probabilities pursuant to s.140(1) of the Evidence Act 1995 (Cth), which provides:

   (1)In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)   the nature of the cause of action or defence;

   (b)    the nature of the subject- matter of the proceeding; and

   (c)     the gravity of the matters alleged.

4. S.140 of the Evidence Act gives statutory effect to the well-known decision of the High Court in Briginshaw v Briginshaw[3].

   [3] (1938) 60 CLR 336

5. In matters such as that now before me where issues of credit are at the forefront, I accept the submission of Counsel for the mother that the Court should consider the evidence as a whole and on the understanding that the nature of allegations of family violence which are effectively non-physical ones will be unlikely to be accompanied by corroborative evidence such as photographs or medical reports.  It is generally accepted, however, and I accept, that family violence of the type asserted by the mother is prevalent and, indeed, a proper and relevant consideration in parenting matters before these Courts.  I also accept the submission of Counsel for the mother that is proper for the Court to consider issues of credit between the parties, especially where the Court does not have available any corroborative or empirical supporting evidence.  Further, I accept that it is proper for the Court to consider the demeanour of the parties and their witnesses in giving evidence in Court.

6. In Galea v Galea[4] Kirby AJC considered the advantages available to trial judges including the following:

   [4] (1990) 19 NSWLR 263

   (a)hearing the evidence in its entirety;

   (b)hearing and seeing all evidence in context, chronologically and logically advanced;

   (c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh against all other evidence while fresh;

   (d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and

   (e)observing body language, sometimes important for interpreting communication.

7. In this sense judges in trial Courts such as these assume the role of juror in assessing the veracity of witnesses and hence being the determiners of fact.  The demeanour of the witness is important as is the consideration of any inconsistencies or contradictions in the evidence of the witness.

8. Nevertheless, the authorities also make it clear that the Court should be aware of the pitfalls of giving too much credence solely to the demeanour of a party or witness when considering the veracity of the evidence[5]. Parties and their witnesses are, of course, in an unfamiliar environment in a courtroom.  They are likely to be nervous and often restrained and careful in their evidence in case they fall into error or accidental disclosure.

   [5] Fox v Percy (2003) 214 CLR 118

1. In the sense of credit, I have commented above on the evidence of the parties and their demeanour in giving that evidence.  Whilst it may not in itself be determinative, my observations of the parties lead me to conclude in matters of credit and disputed fact that I generally prefer the evidence of the mother over that of the father and for those reasons set out above.

The Relevant Law

1. It is trite to observe that Section 60CA of the Family Law Act 1975 ('the Act') provides a fundamental proposition for this Court in a consideration of parenting orders that it be the child's best interests that are the paramount consideration. Those best interests are determined by a reference of the probative evidence and the parties proposals to the numerous and mandatory consideration set out in s.S60CC(2) and (3) of the Act against the background of the objects and principles of the act as set out in s.60B as follows:

   (1)The objects of this Part are 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.

   (2)  The principles underlying these objects are that (except when      It is or would be contrary to a child's best interests)

   (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).

(3)  For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)  to maintain a connection with that culture; and

(b)  to have the support, opportunity and encouragement necessary:

(i)  to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and

(ii)  to develop a positive appreciation of that culture.

Section 60CC Factors

1. This is a matter where the Court’s focus is, not unusually, on a balancing of the primary considerations set out in s.60CC(2) being, firstly, that the Court make orders which benefit children having meaningful relationships with their parents. As against this, the Court must consider making orders where necessary which protect children from family violence or abuse. Amendments to the Act suggest that a Court should give 'greater weight' to the protective concerns in the second subsection. Although, to be honest, where a Court is charged with properly receiving, considering, balancing and weighing the evidence, whatever it is, it is difficult to understand under what qualitative or quantitative methods a Court is to give something 'greater weight'? Nevertheless, being bound by the legislation, I will, of course, give all proper consideration and weight to that subsection.

2. This is not a matter where X is of an age where she would reasonably be able to formulate to her views and preferences as to her living and parenting arrangements.

3. The capacity of the mother to care for X is perhaps not challenged or impeached by reason of the father's application being for limited time-with and where he, therefore, effectively delegates the major care for his daughter to the mother.  The only issue for the Court is in respect of the mother's capacity is whether or not she has an independent insight into the prima facie needs and benefits for X in having a relationship with her father subject, of course, to her best interests.

4. The father's capacity to care for X must, of course, be seen within the ambit of his application which seeks only time- with for himself and the child.  He was cross-examined at length as to his residence and with whom he might live (most likely, in the sense of the family reporter's uninformed comments in respect of his own mother). He gave evidence he has suitable accommodation for the purposes required.  A rare and welcome result of conducting this matter by Microsoft Teams was that the father almost inadvertently provided Counsel and the Court with a 'view' of his proposed living arrangements for X which would be with his own mother.  I agree with the submissions of the ICL that these are entirely suitable for the child. 

5. Again, a criticism of the father is that he lacks the insight into the needs of such a young child to be protected from coercive or denigrating abuse of her mother by the father and his family as is alleged and apparently found to be factual by the family reporter.

6. The same issues are relevant for a consideration of the attitude of each of the parents to the responsibilities of parenthood. 

7. The age of the child is relevant where she is just four years of age and any significant changes in her life must be considered as to their impact on her although, frankly, no changes of any great magnitude are proposed within the ambit of this dispute.

8. The mother here prosecuted (until final addresses by her Counsel), an application whereby she sought an order which would apparently run until X is 18 years of age where the child's time with the father be supervised at a Contact Centre or by a private supervisor to be paid by the father.  An explanation for this position taken by the mother might be that she found herself armed with the above-mentioned family report?  It is also clear that the mother received certain advices from officers of the Department of Health and Human Services concerned that the father may have acted physically and appropriately to his older son.

9. It is well-established that the consideration of a 'meaningful relationship' at s.60CC(2)(a) is both a qualitative and prospective one. Experience suggests that the condition of 'supervision' as sought by the mother and currently imposed is less than ideal and perhaps best understood as a tool given to judges to allow the continuation of a relationship between a child and a parent where otherwise the only available option might be the cessation of that relationship. Nevertheless, it is highly likely that a course of supervised time sends messages to children such as there being a need for the parent to be supervised. The duration of supervised time is usually, for pragmatic reasons, short. The introduction of a contact centre or another person can be confusing to the child. Generally, a condition of supervision attached to time-with is not conducive or encouraging of a full and meaningful relationship between a child and a parent. Certainly, the observations in the family report of X is of complete comfort and ease in the presence of the father and does not argue for the imposition of a supervision condition.

10. The mother claims that she has been the victim of family violence perpetrated by the father.  She argues that the violence is physical, at least in its propensity and also that he has perpetrated coercive, financial and sexual violence on her.  She argued for the condition of supervision squarely on this basis.

Findings and Conclusions

1. It is perhaps unfortunate that this matter occupied the three days of Court time including lengthy cross-examinations of each of the parents and where such is likely to have entrenched any residual mistrust of each against the other.  In the end, and after the evidence, the dispute between these parties is relatively discrete.  It was not always the case.  The mother came to this trial asking for an order that her four year old's time with the father be supervised indefinitely and hence implicitly until she was 18 years of age.  The mother's position is understandable given that she was 'armed' with Dr G’s family report which ultimately proved, in my view, to be provocative of the father and of little evidentiary value save and except of the author’s observations of X with the father which were strangely extraordinarily positive, even if the author did not necessarily see them as complimentary and positive of the father.

2. Further, the mother deposes that she had the advice of the father's ex-wife in respect of asserted family violence by him on his son by that marriage. She did not adduce evidence from the ex-wife. She did not adduce evidence in a form that could be properly tested from any child protective or hospital authorities. The ex-wife's assertions were met with consistent denials by the father. As such, the wife's case rested essentially on propensity or tendency and hearsay evidence which may have been convincing for the family reporter but which suffers in its probity in respect of the provisions of s.97 of the Evidence Act even in proceedings in these Courts where the rules of evidence are not strictly applied but where the mother retains an onus to prove an assertion of fact on the balance of probabilities.

3. The chronology in this matter is notable and important.  In circumstances where the parents have clearly separated in unhappy circumstances and where I am generally satisfied of power imbalances within their relationship, the mother had previously 'permitted' unsupervised time for X, at two years of age, with the father.  It seems to me that circumstances such as the ex-wife's untested, uncorroborated, and denied allegations together with the recommendations of Dr G may have caused this mother to act in a cautious and conservative manner.

4. I am satisfied generally on the evidence that the relationship between these parents remains a non-communicative and suspicious one arising from the power imbalance during their relationship and the position taken by the mother in respect of X post-separation.

5. I am not satisfied that the father has perpetrated family violence of a physical type in respect of X, the mother or his older child. The evidence in respect of this issue is vague, uncorroborated and certainly not such to convince me on the balance of probabilities.

6. I am satisfied that X and the father, at least in the observations for the family report in May 2019, have developed an attached, happy and comfortable relationship.

7. I am satisfied that the mother is capable of caring for X.  Notably, in any event, the father delegates the primary care of X to the mother and hence does not to impeach her capacity.

8. Not being satisfied as to the allegations of family violence made against the father, I am not persuaded that X's time with him should be supervised.  The evidence is that X is familiar with him and completely comfortable in his company.  X is just four years of age.  For some time her experience with the father has been short and supervised.  As such, the proposal of the Independent Children’s Lawyer offers a graduated return for X into the care of the father and accommodating the child's comfort and age.  X, however, will soon be attending school full-time and therefore be socialised to a higher degree.  I am of the view, therefore, that time for X with the father should ultimately begin on Friday afternoons and conclude on the Sunday.  I am also of the view that X and the father should experience the benefits of block times in school holidays together.

9. The issue of parental responsibility is a complex one.  As mentioned above, I am satisfied generally that there are power imbalances still at play between the father and the mother.  She is timid by personality.  She has no obvious support network in Australia.  English is not her first language.  By contrast, the father is confident and effusive of personality.  These traits would be likely to manifest in communications between the parents.  Nevertheless, it is generally my experience that parents are of different personality types within the relationships.  The legislation provides a presumption that it be in a child's best interests for parents to both have input in to the important decisions for their children.  These are not decisions that are made every day.  They are usually made on notice and require informed consideration.  Firstly, the evidence does not satisfy me that the presumption does not apply by reason of family violence being proven in this matter.  Secondly, and on reflection, I am of the view that the presumption is not rebutted as being contrary to X's best interests.  Ideally, she should benefit from a breadth of input into decisions in respect of her.  Whilst I describe the mother's personality as 'timid', she has previously shown the capacity to make decisions in her child's best interests and against the views of the father.  Generally, therefore, I am of the of the view that both these parents prioritise their daughter's best interests and, as such, will be able to compartmentalise any personal differences and act in a shared manner in respect of necessary decisions.  There will be an order for equal shared parental responsibility in the parents for X.

10. I am content to make the injunctive orders sought by the Independent Children’s Lawyer in the nature of the parents being restrained from abusing, belittling, insulting, rebuking or otherwise denigrating the other.  Such an order might assist in addressing the above-mentioned power imbalance between the parents.

11. I am not persuaded that the father's time with X should be restricted to his mother's residence.  Whilst his own evidence in relation to his residential circumstances were vague and with the suggestion that he lives primarily with his own mother, X is just four years of age and it would not, in my view, be proper to impose residential restrictions where the father is conservative in the orders that he seeks for time-with for himself and X.

12. There remains the issue of X being permitted to travel with the mother overseas and primarily to India?  The mother asks for an order which essentially gives her open permission but conditional upon the father having six weeks notice which in itself puts an onus on him to come back to Court to stop the mother’s travel with X.  The father seeks an order where the Airport Watch List to remain with an order that the parents agree to any overseas travel with the implication, failing agreement, that it would be for the mother to show that it would be in the child's best interests and she not be a flight risk if X was to travel with her.

13. I prefer the position of the father.  Firstly, the mother is of Indian origin.  She has no extended family in Australia.  Her family members live in India.  Her relationship with the father is broken down and remains an untrusting one.  She came to Australia specifically to marry the father and has little or no other connection with this country despite her quest for citizenship which I understand remains unresolved.  Importantly, India is not a signatory to the Hague Convention on child abduction.  In all of those circumstances, I prefer that the onus be on the mother, failing agreement with the father, to convince a Court that it is both in the child's best interests for overseas travel to occur and that the mother does not present as a flight risk.  As such, the Airport Watch List order will remain on foot for a period of five years after which there will be an onus on the father, if he sees fit, to renew the order.  There will be liberty to the parties or either of them to apply in respect of overseas travel.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Associate: 

Date: 10 September 2020