KEITA & MAALOUF

[2014] FCCA 1898

FEDERAL CIRCUIT COURT OF AUSTRALIA

KEITA & MAALOUF [2014] FCCA 1898

Catchwords:
FAMILY LAW – Interim parenting – allegations of family violence and mental health issues – evaluation of the evidence.

FAMILY VIOLENCE – Nature of the evidence – whether findings are necessary – whether inferences can be drawn – nature of inferences.

PARENTAL RESPONSIBILITY – Whether findings necessary to rebut presumption in s.61DA – whether inferences suffice.

Legislation:  

Family Law Act 1975 (Cth), ss.60B, 60CC, 61DA, 65DAA, 69ZR

G v H (1994) HCA 48
Goode & Goode [2006] FamCA 1346
G v H (1994) HCA 48

Applicant: MR KEITA

Respondent: MS MAALOUF

File Number: WOC 199 of 2014

Judgment of: Judge Altobelli

Hearing date: 18 July 2014

Date of Last Submission: 10 July 2014

Delivered at: Sydney

Delivered on: 18 July 2014

REPRESENTATION

Solicitors for the Applicant: Williamson Isabella

Solicitors for the Respondent: Rachel Stubbs & Associates

ORDERS

PENDING FURTHER ORDERS THE COURT ORDERS THAT:

1. The Mother have sole parental responsibility of the Child [X] born [omitted] 2012.

2. The Child shall live with the Mother.

3. Each party must:

   (a)contact Catholic Care (“the Contact Centre”) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the Child spend with the Father;

   (b)attend the assessment;

   (c)comply with any appointments made by the Contact Centre for supervised time;

   (d)comply with all reasonable rules of the Contact Centre; and

   (e)comply with all reasonable requests or directions of the staff of the Contact Centre including to participate in a program or programs.

4. If after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision as set out in order (3) then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on 7 days written notice to the other party and to the Court.

5. The Contact Centre may recommend the parties or either of them to participate in a program or programs.  Each party must comply with any such reasonable request.  In the event of a dispute arising about participation in a program, either party or the Independent Children’s Lawyer may re-list the matter for mention on 7 days notice.

6. That the child shall spend time with the father as follows:-

   (a)Two times per week for a period of two (2) hours at a Contact Centre such as Everyday Care South or Catholic Care and that such time be supervised;

   (b)That after a further period of three months, unsupervised time occur each Saturday from 8am to 12pm.

   (c)That after a further period of three months, unsupervised time occur each Saturday from 8am to 4pm.

   (d)Any other time as agreed between the parties.

7. In the event that the Contact Centre offers supervised time only at times which are  less regular than specified in order (6), then, contact shall occur at the times that are offered by the Contact Centre.

8. The time the Child spends with the Father under order (6) is to be supervised by the Contact Centre and the Father must pay the reasonable fees for the supervision on each occasion of supervision.

9. The Father must not attend the Contact Centre or its vicinity before the time with the Child is to start and must promptly leave the Contact Centre and the vicinity at the time the time with the Child is to end.

10. If the Contact Centre during the currency of these orders declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of these orders, then either party (or the Independent Children’s Lawyer) may on 7 days written notice to the other party and the Court restore the matter to the list. 

11. If during the currency of these orders the parties and the child’s representative agree in writing to vary these orders the parties have leave to list the proceedings in chambers urgently for consent orders to be made.

12. The period of contact provided in these orders may vary by reason of the closure of the Contact Centre’s services during school and public holiday periods, and in such event, contact shall occur at times when the services can be provided by the Contact Centre.

13. It is noted that these orders do not bind the Contact Centre (as it is not a party to this case) but requests it provide a service to assist the parties and their child.

14. That the father undergo an approved parenting course such as the Triple P, Positive Parenting Program prior to any unsupervised time commencing in Order (6)(b) and provide evidence of the completion of this program to the Court and to the mother’s solicitor.

15. That the Orders be reviewed by the parties 6 months prior to the child commencing school at a Family Relationship Centre or another agreed mediation facility.

16. That in order to facilitate changeover pursuant to these Orders the father shall collect the child from the mother at the commencement of his time with the child and return the child to the mother at the conclusion of his time with the child and that the changeover occur at a public location such as Aldi or Woolworths.   

17. That the mother’s home address is to remain confidential and not to be disclosed for any reason to the father.

18. Each parent is to ensure that the other parent is kept informed as soon as it is reasonably practical of:-

    (a)Any medical problems or illnesses suffered by the child;

    (b)Any medication that is being prescribed to the child that needs to be taken while the child is in the care of the other parent;

    (c)Any specialist medical appointments with any medical doctor, psychologist, psychiatrist, counsellor regarding the child.

19. The parties be restrained from making critical or derogatory remarks about each other or members of each other’s family in the presence of the child and the parties to do things reasonable necessary to ensure no other person makes any critical or derogatory marks about other parent or members of their family and the child present.

20. That the father is not to use any form of physical force when disciplining the child.

21. The matter be adjourned to 8 September 2014 at 2:00pm for mention.

22. Leave granted to the parties to relist on 7 days notice by joint Application to the Court.

IT IS NOTED that publication of this judgment under the pseudonym Keita & Maalouf is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

WOC 199 of 2014

MR KEITA

Applicant

And

MS MAALOUF

Respondent

REASONS FOR ORAL JUDGMENT

Introduction

1. This case is about [X], who was born on [omitted] 2012.  [X] is about two and a half.  The Applicant is his father.  He is 49 years old.  The Respondent is his mother, who is 26 years old.

Background

1. On [omitted] 2009 the parties married in the Congo.  In June 2009 the Father migrated to Australia, leaving his four children from a previous marriage in the care of the Mother.  On 31 August 2010 the Mother migrated to Australia with the Father’s four children.  On [omitted] 2012 [X] was born, and on 12 January 2013 final separation occurred.  On 23 January 2013, the Mother obtained an AVO against the Father.  On 6 May that year he consented to the AVO, he says, on a without admission basis.  The order was made for six months. 

2. On 28 January 2014 the Father saw the Mother and [X] at the shops for the first time since the AVO was made.  On 4 March 2014 the Father commenced the current proceedings.  On 12 May 2014 there were interim consent orders for [X] to spend time with his father, initially at CareSouth and subsequently on the basis of no supervision.

Competing Proposals

1. The Father’s proposal at the Interim Hearing was in accordance with his Application, that is, in effect, that [X] lives with his father and spends time with his mother each alternate weekend.  The Father’s evidence is his affidavit of 28 February 2014.  Whilst it is curiously succinct about some matters that the Court might otherwise be very concerned to know about, it is certainly graphic in terms of background issues, for example, paragraphs 9, 10 and 11 of his Affidavit.

   [9] My former wife passed away in 2007 during the war in DR Congo.  My wife and I were kidnapped during the night by two different groups.  I was beaten and lost consciousness but later was found and revived.  I was taken across the border to Uganda and thereafter came to Australia as a refugee.  My wife was killed by her kidnappers. 
   [10] The children were taken in by our neighbour and they fled into the bush.  I had no way of contacting the children or knowing where they were or even whether or not they were alive.
   [11] It was only after a significant period of time that my neighbour became aware that children without parents would be taken in by the Ugandans.  My neighbour was of the understanding that both my wife and I were dead.  He took the children to Uganda and there was able to make inquiries about me.  After speaking to many refugees they discovered I was alive and had travelled to Australia.

2. The Father’s affidavit is entirely silent about any concerns he may have had about the Mother’s mental health.  He is critical of the Mother, however, about what he perceived to be her false family violence allegations that resulted in an AVO against him, as well as about [X]’s dental health.  When the Father swore this affidavit, he had not seen [X] for over a year.  He says nothing, however, about the nature of his relationship with [X] or his involvement in parenting.  He seemed concerned to re-establish contact between [X] and his siblings.

3. The Mother’s proposal is for sole parental responsibility, lives with the Mother and supervised contact at CatholicCare or an equivalent and then, after three months, unsupervised contact.  The Mother’s evidence is her affidavit of 26 June.  It is a comprehensive affidavit.  It is also very graphic as to matters pertaining to her background, and here I will incorporate paragraph 9. 

   [9] On 13 September 2007, armed rebels murdered my parents, my first husband and 2 year old daughter. I find it difficult to talk about these past events in Uganda. I was also beaten and gang raped in Uganda.

4. She also particularises allegations about family violence perpetrated by the father against her, as well as raising concerns about the Father’s parenting capacity.  She deposes to being the primary carer of [X] as well as her son from a previous marriage, [Y], who is seven years old.  She annexes to her affidavit the three CareSouth reports of the Father’s supervised time with [X], again in the context of explaining her concerns about his parenting capacity.  The CareSouth reports will be discussed below.

The Evidence

1. The Applicant Father relied on the following documents:

   ·Initiating Application filed 4 March 2014; and

   ·Affidavit of Mr Keita filed 4 March 2014.l

2. The Respondent Mother relied on the following documents:

   ·Response filed 27 June 2014; and

   ·Affidavit of Ms Maalouf filed 27 June 2014; and

   ·Supervised contact reports from Caresouth; and

   ·Exhibit A1 - NSW Police subpoena documents; and

   ·Exhibit A2 – [omitted] Women’s Refuge subpoena documents; and

   ·Exhibit A3 – [omitted] local Health District and Hospital subpoena documents; and

   ·Exhibit A4 – Department of Family and Community Services subpoena documents;

   ·Exhibit A5 – Mental Health Services subpoena documents; and

   ·Exhibit A6 – Caresouth subpoena documents; and

   ·Exhibit A7 – [W] Medical Centre subpoena documents; and

   ·Exhibit A8 – Barnados subpoena documents; and

   ·Exhibit A9 – [omitted] Local health District subpoena documents.

The Father’s Case

1. The Father’s case presented at the Interim Hearing was that he had significant concerns about the Mother’s parenting capacity due to her mental health issues arising from her very traumatic past.  On his behalf, it was submitted that the subpoenaed documents indicated that the mother suffered from post-traumatic stress disorder, extreme depression, anxiety and stress.  It was suggested that she had threatened self-harm and had transient suicidal ideation.

2. The Father’s case was that the family violence allegations were strenuously denied and were poorly corroborated in the independent material, in the form of the subpoenaed documents.  When pressed by the court, however, the lawyer representing the Father could not point to any concerns in the subpoenaed documents to the effect – or even a hint, for the matter – that the Mother’s mental health problems were affecting her parenting.  Moreover, again when pressed, the Father’s legal representative could not satisfactorily explain why the Father’s concerns, as serious as they had been articulated in submissions, had not been iterated in his affidavit.

The Mother’s Case

1. The Mother’s case is that she was clearly [X]’s primary carer and, that there was no evidence to suggest that there are any health concerns that she experiences which impacts on her parenting capacity.  Her case was that there were very serious concerns about the Father’s parenting capacity and that the family violence allegations were well-corroborated in the subpoenaed documents. 

2. Her case was that the Father’s own proposal of sole parental responsibility and lives with the Father was itself indicative of the controlling conduct of which the Mother complained and that, in any event, to accede to the Father’s proposal would be to subject [X] to the extreme trauma of removal from his mother.

The Applicable Law

1. The applicable law is, of course, Part VII of the Family Law Act 1975.  The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of that Part and the way to proceed and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

2. In determining parenting matters under Part VII of the Family Law Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

3. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (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.

1. At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption 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.

2. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

3. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

Determining child's best interests

(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3)  Additional considerations are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child);

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's family;

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

(l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

(m)  any other fact or circumstance that the court thinks is relevant.

Meaningful Relationship

1. Section 60CC(2)(a) deals with meaningful relationship. The Court does not regard meaningful relationship to be a determinative consideration in the present interim hearing. On either proposal, [X] would enjoy a meaningful relationship with both his Mother and Father, having regard to his age and to the circumstances of his limited involvement in his Father’s life since separation.

Protection from Harm

1. Section 60CC(2)(b) looks at matters of protecting a child from harm. The Father’s case is that there is a real risk to [X] because of his Mother’s mental health. There are a number of problems with this argument. Firstly, the Father does not depose to this concern at all in his affidavit. Secondly, even if the Father had this concern before the date that the case was argued, he does not explain to the Court satisfactorily why he did not commence proceedings before he did. Even if there were some validity to his belief that the Apprehended Violence Order has somehow stopped him from seeing his son, that expired in November and does not explain why proceedings could not have been commenced.

2. Thirdly, the Father’s concerns about the Mother’s mental health are, in any event, plainly unsupported by the documents produced on subpoena.  For example, documents produced by [W] Medical Centre show that as at 12 January 2014 her psychologist Dr H reported an improvement in the mother’s condition, describing it as mild depression, moderate anxiety and normal stress. 

3. Moreover, nowhere in the extensive documents produced to the Court is there any expression of concern by any of the treating professionals about risks to the child or impact on the Mother’s parenting capacity.  There is no basis at all for the Father’s concerns and, indeed, there is an inference that could be drawn that his allegations are as disingenuous as they are baseless and were either calculated to or, in any event, had the effect of causing distress on the Mother.

4. The Mother’s case is that she has experienced family violence and that there is a risk to [X].  Contrary to the Father’s submissions, the Mother’s allegations are, firstly, well-particularised in her affidavit and, secondly, consistent with reports that she made to third parties in the immediate post-separation period and, thirdly, are corroborated in part by the Apprehended Violence Order. 

5. Whilst there is a basis for the Court to be concerned that family violence was, in fact, perpetrated, the issue of risk to [X] is not so clear, as even the Mother has proposed that the spends time with arrangement becomes unsupervised and, indeed, that is precisely what she consented to on 12 May 2014.  Having regard to these matters, the consideration set out in subsection (2A) is not so clear and probably does not have a significant impact on the decision today.

Nature of Proceedings

1. Section 60CC(3)(b) discusses the nature of the relationships between [X] and his parents. Even the Father does not dispute the reality that, in the circumstances of this case, the mother is his primary carer both before and after separation. What evidence there is about the Mother’s relationship with [X] suggests it is a positive and healthy one.

2. The nature of [X]’s relationship with his Father is much less clear.  There was a lengthy period of no contact at all, it would seem, partly attributable to the Father’s inaction. The CareSouth reports are positive at one level.  When they met for the first time in over a year on 17 May 2014, even the Father recognised that [X] did not know who he was.  Notwithstanding this, they seemed to bond quickly.  The second visit on 31 May 2014 again seems to have proceeded on the basis that [X] had to get to know his Father all over again.  The third visit, however, was more problematic, with [X] being quite antagonistic.  All that can be said from this objective evidence is that [X] has an emerging relationship with his Father who, in all the circumstances, seems cognisant of the problem and for the most part reacted both patiently and appropriately. 

Opportunities to Spend Time

1. Section 60CC(3)(c) talks about taking opportunities to spend time. It is very hard to understand why the Father delayed in bringing the proceedings. It is possible that he genuinely believed that somehow the AVO prevented him from seeing [X]. That is unlikely, however, as the order for protection does not include [X] and, in any event, explicitly contains the standard additional order referring to the Family Law Act. The more likely scenario that can be inferred from the available evidence is that the application was, in fact, motivated by bumping into the Mother and [X] at the shops.

Impact of Change

1. Section 60CC(3)(d): what is patently obvious from a perusal of the CareSouth supervised contact reports is that such is the tenuous relationship between [X] and his Father that the Father’s proposal in having [X] placed in his care would be nothing less than traumatic for [X], particularly in circumstances where there is plainly no warrant to do so. It would be unacceptable change for [X].

2. It must be recognised that even the Mother’s proposal involves change for [X], in that she proposes that the consent order she agreed to be varied and that contact revert to supervision.  It is somewhat difficult to understand the Mother’s proposal in this regard, but this will be considered further below in the context of determining what orders are in [X]’s best interests.

Practical Difficulty and Expense

1. Section 60CC(3)(e) looks at issues of practical difficulty and expense. These do not appear to have been significant issues in this case. Any practical issues appear to have been satisfactorily managed by the parties in the past.

Parenting Capacity

1. Section 60CC(3)(f) looks to matters of parenting capacity. The Father raised serious concerns about the Mother’s parenting capacity, particularly derived from her mental health. As discussed, these concerns are not borne out by the evidence. There is no basis for concern about the Mother’s parenting capacity. The CareSouth reports suggest [X] has acquired some colourful language as part of his growing language skills. The Mother’s explanation is that this is because of environmental factors, that is, the neighbourhood that they live in, and the Court accepts this as a plausible explanation.

2. The Mother raises concerns about the Father’s parenting capacity, which are largely borne out by the CareSouth reports . For example, the reports that raise issues about the Father’s ability to change [X]’s nappy without assistance as well as inappropriate expectations of what [X] can do in a developmental sense.  To be fair to the Father, some of this is understandable in the context of those first visits, as he had not seen his son for over a year.  Nonetheless, the Father sought to reassure the Court about his parenting capacity because he had four other children.  Clearly, his experience with these children did not extend to changing nappies.  It must be remembered that the Father’s relationship with [X] is an emerging one.  These concerns certainly do highlight the inadequacy of the Father’s proposal for [X] to live with him. 

Maturity, Sex, Lifestyle and Background

1. Section 60CC(3)(g) also asks the Court to look at matters of maturity, sex, lifestyle, and background. [X] is a very young child who has not spent much time away from his Mother or with his Father. Both parents are of African background. The impression from the evidence is that whilst the Father enjoys a close contact with his community in [omitted], the Mother does not, and feels somewhat ostracised by her separation, the Apprehended Violence Order, and the present litigation. Both parents have clearly suffered significant psychological trauma in their lives. There is evidence that informs the Court about how the Mother is handling said trauma but, there is none about the Father. In the context of the present application, the consideration about matters of background is not determinative.

Parental Attitudes

1. Section 60Cc(3)(i) looks at parental attitudes. Despite her circumstances and background, the Mother seems to have been very supportive of [X]’s relationship with his Father.  The CareSouth notes are illustrative of this.  There was one visit where, perhaps, she should have abided by the worker’s advice in relation to separating from [X], but the issue was eventually resolved.  Where the Mother has expressed a concern in relation to [X], these concerns have been largely supported by the evidence. 

2. By contrast, the evidence, even at an interim level, does give rise to concerns about the Father’s attitude to [X] and to the responsibilities of parenthood. 

3. Firstly, the Father’s only proposal to the Court was, with great respect to him and those who advise him, unrealistic.  It was unsupported by the evidence given in his only affidavit.  It was unsupported by the evidence in subpoenaed documents.  It is truly mystifying why he would not make an alternative proposal.  It reflects poorly on him in terms of his attitude. 

4. Secondly, the Father’s denial of family violence seems to minimise the nature and extent of the family violence that occurred in the relationship. 

5. Thirdly, the Father’s delay in bringing these proceedings seems explained in a very superficial and unconvincing manner. 

6. Fourthly, the Father’s attack on the Mother’s mental health is not only unsupported by the objective evidence, but minimises the possibility that he has contributed directly or indirectly to any such mental health problems through the perpetration of family violence.  He, in any event, seems to try to take advantage of the extremely traumatic circumstances of the Mother’s life in the Democratic Republic of Congo, and in circumstances where he himself shared, albeit in different ways, some of these traumas.  Whereas the Mother’s mental health has been subjected to intense scrutiny, his has not, despite the common theme of trauma.  None of the matters to which I have made reference demonstrate child focus or insight into the child’s needs, matters that are important, having regard to his age and developmental stage.  These deficits are hardly conducive to the Father being the primary carer that he asks the court to be. 

Family Violence

1. Sections 60CC(3)(j)-(k) deal with family violence and family violence orders. Whilst, to some extent, this issue has already been discussed, it is important to expand upon it here. The Father deals with the family violence allegations in two paragraphs of his affidavit filed 28 February 2014. He uses words such as, “shocked to read the false allegations.” He agrees that he, “consented without admission to the Apprehended Violence Order being made for a period of six months.” In her submissions on the Father’s behalf, his lawyer pointed to the absence of any reference to family violence in contexts where one would have expected the mother to make a disclosure.

2. One example will suffice in this regard.  Exhibit A9 comprises documents produced by the [omitted] Local Health District and, specifically, community nursing notes.  In a document entitled First Visit Risk Assessment Generic, dated 27 February 2012, there is a question about whether there is an indication of a potential for violence. The answer recorded is no.  At first blush, the absence of disclosure seems significant.  The Mother was engaging with a health professional who was preparing a business record at a period of time when, consistent with the Mother’s other evidence, she was experiencing family violence.  The submission could well be made that it is odd, and indeed perhaps quite inconsistent with the Mother’s allegations, that no disclosure is made. 

1. What happens, however, when the page of the document in question is turned over, is that one discovers that the Father was present during the intake process.  Indeed, the interview took place at the home, and it is specifically recorded on the next page that the Father was present.  Indeed, he was recorded as being, “both very polite and courteous.”  With great respect to whoever was completing this form, did they really expect the mother to make a disclosure of family violence when the father was present?  In context, therefore, the absence of a disclosure is quite understandable.  Now, by contrast, the alternative evidence about family violence must be examined. 

2. The Mother’s Affidavit of 26 June 2014 deals with family violence extensively; indeed, in at least 20 paragraphs.  She annexes the final Apprehended Violence Order, whereas the Father does not.  There is nothing on the face of that document, that is, the Apprehended Violence Order, to corroborate the Father’s assertion that it was by consent or that it was without admissions.  No inference can be drawn by reference to the period of the order; that is, six months. 

3. Looking outside the Mother’s affidavit, several documents that were tendered in evidence relate to family violence.  The Mother’s history given to Barnardos in exhibit A8 is consistent with her evidence.  Moreover, there is a record dated 6 February 2013 of the Mother’s son, [Y], saying to the record maker that the Father is “scary” and “hurts my mother.”  In exhibit A7, documents produced by the [W] Medical Centre, there is an assessment report prepared by a psychologist, Dr L, recording the Mother’s disclosure that the father was “physically and verbally abusive.”  Exhibit A6 are documents produced by CareSouth which contain records of several disclosures of family violence perpetrated by the Father; such records being dated 6 March 2013 and onwards. 

4. Exhibit A4 are documents produced by the Department of Family and Community Services, and in this regard a contact record of 31 December 2012 refers to the Mother telling the caller that there was physical domestic violence in the relationship.  There is thus a consistency as between the Mother’s sworn evidence and the reports that she gave to third parties that leads, at least in the context of interim proceedings, to a preference as to the plausibility of her assertions as opposed to the Father’s denials. 

Assessing Evidence of Family Violence in Interim Hearings

1. There is a well-known passage from the Full Court’s decision in Goode that is frequently used by those appearing for the parent against whom allegations of family violence are made.  Paragraph 68 of the Full Court judgment states:

   Where the court cannot make findings of fact, it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.

2. This may well be one of the most misunderstood and misused passages in the Full Court’s decision. The Full Court did not say that findings of fact could not be made in interim proceedings. Such a proposition would be plainly inconsistent, for example, with section 69ZR of the Act, which states:

   Power to make determinations, findings and orders at any stage of proceedings
               (1)  If, at any time after the commencement of child-related proceedings and before making final orders, the court considers that it may assist in the determination of the dispute between the parties, the court may do any or all of the following:

   (a)  make a finding of fact in relation to the proceedings;

   (b)  determine a matter arising out of the proceedings;

   (c)  make an order in relation to an issue arising out of the proceedings.

   Note:         For example, the court may choose to use this power if the court considers that making a finding of fact at a particular point in the proceedings will help to focus the proceedings.

   (2)  Subsection (1) does not prevent the court doing something mentioned in paragraph (1)(a), (b) or (c) at the same time as making final orders.

   (3)  To avoid doubt, a judge, Judicial Registrar, Registrar or magistrate who exercises a power under subsection (1) in relation to proceedings is not, merely because of having exercised the power, required to disqualify himself or herself from a further hearing of the proceedings.

3. Clearly, if the evidence permits, a finding could possibly be made. That finding might even be made without cross-examination, though obvious care needs to be undertaken in this regard. A finding might be made at an interim hearing that is then modified, either at a later interim hearing or at a final hearing. That power is at least implied by section 69ZR, even if the power needed to be articulated.

4. In any event, even if the Full Court’s decision could be read in the manner that is so often advocated, that is, to preclude findings of fact, there is nothing in the Full Court’s decision to prevent a judge in an interim matter making a determination based on something that is short of a finding such as an inference or an impression, provided this is firmly based on the evidence. In this regard, section 69ZR(1)(b) refers to the making of a “determination” in relation to a matter in distinction to the making of a finding of fact: thus suggesting a case may be decided on the basis of something short of a finding of fact.

5. The other reason why paragraph 68 of the Full Court’s decision in Goode cannot possibly mean what it is so often submitted to mean is because it would be plainly contrary to the statutory scheme set out in part VII of the Act. In a case like the present one where family violence looms as a significant issue that will inform the parenting order to be made, how is the court to have regard to the primary considerations set out in section 60CC(2)(b), to then apply such consideration consistent with subsection (2A) and then also consider the matters set out in paragraphs (j) and (k) of subsection (3), if every allegation of family violence is simply rendered nugatory by even the blandest form of denial, all supposedly justified by the need to avoid some form of procedural impropriety by not making findings of fact? Clearly a much more nuanced approach to the evidence is called for.

6. Even if the court declines, as it does in this case, to make findings of fact against the Father about family violence, nonetheless, when the evidence is “considered”, and, of course, that is what the court is required to do in section 60CC(1), the inference to be drawn or the impression to be formed is that there is such evidence about family violence as to warrant a cautious and conservative approach to the framing of parenting orders so that if, at a final hearing, findings of fact are actually made, with retrospect the interim orders will be found to have been adequately protective of the children.

Findings, Inferences and Impressions

1. JD Heydon, in Cross on Evidence, Australian Edition, treats inferences as empirical material not complying with the rules of evidence.  At paragraph 3200 he acknowledges the reality that:

   Much empirical material is employed in decision making by courts without evidence being received, without judicial notice being taken, without admissions being made, and without any specific warning being given to the party against whom that empirical material is used (though commonly the opposing party or the court will, in final addresses or otherwise, indicate how it may be used). It is material which is part of the make-up of the human beings who form courts arising out of their general common experience of life.

   This general common experience of life causes the minds of courts to be full of many generalisations — right or wrong, crude or subtle, useful or misleading— about the behaviour of humans and about the physical and social world they inhabit.

   This material is used for two main purposes: by the judge in determining what evidence is to be admitted as relevant, and by the trier of fact in understanding evidence, assessing its truthfulness, evaluating it, and drawing inferences from it — for "the drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience”.

   Triers of fact cannot, in the nature of things, be divested of general knowledge of practical affairs. The court cannot do otherwise than to direct them to use such experiences as are common to all men in the decision of questions of fact.

2. The important fact recognised in this passage is that decisions are made in court on the basis of much more than just the formal evidence presented but also, for example, on the basis of inferences drawn from that evidence by the trial judge in a way that is inevitably subjective.  Provided this process is nonetheless grounded on the available evidence and transparently so, the implication is that it is entirely appropriate to do so.  Thus, decisions are made using the foundation of evidence, but not necessarily only by making findings of fact.

3. The quotation in the passage above, “the drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience,” comes from the High Court’s decision in G v H (1994) HCA 48, 19 October 1994 at [4], per Brennan and McHugh JJ. There the court was dealing with the drawing of an inference of paternity from an unreasonable failure to comply with a parenting testing order made under 66W of the Family Law Act1975 (Cth). It is instructive to set out all of paragraph 4 of their Honour’s reasons:

   [4]  Then there is G's failure to submit to a parentage testing procedure ordered under s.66W of the Family Law Act. Section 66W(5) authorizes the Court to "draw such inferences as appear just in the circumstances" from a person's failure to comply. It is one thing to say that the Court may draw an inference; it is another to say what inference should be drawn. An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference ((1) Martin v. Osborne (1936) 55 CLR 367.). But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle. Therefore, although s.66W(5) authorizes the drawing of a just inference from a failure to comply with a parentage testing order, it can say nothing about the inference which should be drawn from the facts of a particular case.

4. In the present context of an interim hearing, the inferences to be drawn from the evidence are clearly tentative though nonetheless informative of the interim decision.  The completely different ways in which each parent presented their evidence about family violence and then made submissions about the same might lead to a tentative deduction that the Father was seeking to minimise what family violence in fact took place.  The inference to be drawn is that the family violence was in fact more than he disclosed, perhaps quantitatively and qualitatively. 

5. The consistency between the Mother’s detailed disclosures about family violence in her evidence and in her disclosures to independent third parties who created business records leads to a deduction that her account was not minimised and that it is unlikely to have been fabricated except possibly as part of a systematic scheme to deceive.  The latter is contra-indicated on the available evidence.  For example, why would a Mother fabricating family violence allegations in a systematic way nonetheless so actively support the re-establishment of a relationship between her son and his Father?  The inference to be drawn is that the Mother’s account of family violence is probably true.  Findings of fact, however, cannot be made. 

6. Nonetheless, it is critical that the inference be based on evidence and not mere speculation.  The inferences drawn about family violence in this case are, in this court’s opinion, soundly based on the evidence. 

Parental Responsibility

1. The Father sought equal shared parental responsibility; the Mother sole parental responsibility. Can the presumption be rebutted pursuant to 61DA(4) on the basis of inferences rather than findings of fact? Section 61DA(4) refers to, “evidence that satisfies the court.” There is no warrant to read into this any necessity to make findings of fact. There is no reason in principle why a statutory presumption cannot be rebutted by something less than a finding. It is interesting to note the different language used in s.61DA(2) which simply refers to where the “presumption does not apply,” the threshold being “reasonable grounds to believe.”

2. There is no reason to infer from the words of the legislation the need to make findings.  The evidence available to the court leads to the making of an order for sole parental responsibility.  The inferences drawn about family violence result in a statutory presumption not applying.  In any event, the presumption is rebutted because of the very tenuous nature of [X]’s relationship with his father.

Best Interests

1. The dilemma presented in this case is that the current spends-time-with arrangement consented to by the Mother who was, at the time, competently represented is somewhat inconsistent both with her stated concerns and her current proposal to the Court that would involve the return to supervised contact.  Notwithstanding this, the Court does not consider that it is in any way bound by the existing consensual arrangements of the parents, nor is its decision making power in any way constrained by the existing order.  The unequivocal focus must remain on making an order that is in the best interests of [X].

2. It is important to recognise that the Mother’s Response and Affidavit was not filed until nearly six weeks after the interim orders were made.  It is likely that the Mother and her legal representative may have felt some pressure to enter into some form of spends-time-with arrangement when the matter came before the Court on 12 May.  It is even possible that the Court may have subtly or not so subtly exerted settlement pressure on the parents in the context of a busy duty list with multiple equally pressing priorities but on the basis of only the Father’s evidence.  The dangers inherent in such a process are self evident.  One doubts very much that the court would have made consent orders on 12 May in their current terms if it had available to it all of the evidence that was available to it on 10 July when the interim matter was heard.

3. Having regard to all the evidence before the Court today, there is good reason to make orders in terms of that sought by the Mother.  The need for further supervision is apparent from the Care South records which indicate some deficits in the Father’s parenting capacity as well as the tentative and emerging relationship that [X] has with his father.  The inferences drawn about family violence merely add to these concerns and the need for supervision. 

4. The Mother proposes unsupervised time in three months.  That seems appropriate subject to [X] coping.  The Mother will have leave to relist on seven days notice if there is evidence that he is not coping.  The other orders sought by the Mother are entirely appropriate and justified by the evidence and are a proportionate response to the concerns identified on the evidence.  It follows that the existing orders much forthwith discharged.  An Independent Children’s Lawyer must be appointed.  It would be best for the parents to forthwith do the intake at Catholic Care, bearing in mind the delays in accommodating that service.  In the meanwhile, the Father will need to use alternative care services such as Care South, as he has done in the past.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  22 October 2014