Kelks & Gadella
[2021] FedCFamC2F 591
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kelks & Gadella [2021] FedCFamC2F 591
File number(s): ADC 3004 of 2021 Judgment of: JUDGE BROWN Date of judgment: 16 December 2021 Catchwords: FAMILY LAW – Parenting arrangements for a child aged four – where father has no current contact with the child – best interests of the child – assessment of risk – where father wants to resume time with the child – where mother is proposing no time – where father is facing serious criminal charges – issues relating to family violence – coercive and controlling behaviour – application of the paramountcy principle. Legislation: Family Law Act 1975 (Cth), Pt.VII, ss.4AB, 60B, 60CA, 60CC, 61DA Cases cited: B & B (1993) 16 Fam LR 353
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FamCAFC 104
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright (2007) 37 Fam LR 518
Slater & Light [2013] FamCAFC 4
Division: Division 2 Family Law Number of paragraphs: 108 Date of hearing: 9 December 2021 Place: Adelaide Counsel for the Applicant: Ms Hume Solicitor for the Applicant: Tessa Hume Counsel for the Respondent: Ms Cocks Solicitor for the Respondent: Tindall Gask Bentley ORDERS
ADC 3004 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KELKS
Applicant
AND: MR GADELLA
Respondent
ORDER MADE BY:
JUDGE BROWN
DATE OF ORDER:
16 DECEMBER 2021
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
1.The child live with the mother, Ms Kelks (hereinafter referred to as “the mother”).
2.The child spend no time with the father, Mr Gadella (hereinafter referred to as “the father”).
3.The father be restrained, and an injunction is hereby granted restraining him from attending at, or causing the child to be removed from any child care facility, kindergarten or educational institution in which the child made from time to time be enrolled and from allowing any other person to do so.
THE COURT FURTHER ORDERS THAT:
4.Pursuant to Section 62G(2) of the Family Law Act 1975 (Cth) the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit and Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report, with such report to be released by 29 July 2021.
5.The Family Report is to deal with the following matters:
a.to include interviews with the parties, the child and relevant family members;
b.observed interaction between the child and the parties;
c.any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
d.the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and
e.any other matters that the family assessor considers important to the welfare or best interests of the said child.
6.The solicitors for the parties forward copies of all documents filed with the court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit and Family Court of Australia.
7.Upon the Report being provided to the court, the court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
8.Unless a party objects, in writing, within fourteen (14) days of the date of releasing the Family Report, copies of the Family Report may further be provided to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
a.a Children’s Court;
b.a child protection authority;
c.a State or Territory legal aid authority; and
d.a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section 121 of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.
9.Unless otherwise ordered, no person shall release the Family Report, or provide access to the Family Report to any other person.
10.The matter be adjourned to 8 August 2022 at 9:30 am noting that the proceedings are to be conducted face to face.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kelks & Gadella has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These reasons for judgment relate to an interim application made by the father, Mr Gadella (“the father” or “Mr Gadella”) to spend supervised time with a four year old child, X (“X” or “the child”). The mother, Ms Kelks (“the mother” or “Ms Kelks”) alleges serious incidents of family violence involving her and her current partner, which are of such seriousness that the court should not contemplate any time occurring.
The mother’s case is that she has been the primary carer of the child concerned and was regularly subjected to serious family violence, which escalated in April of 2021 to a premeditated assault on her current partner, which left him seriously injured.
It is further her case that the father has not been candid about this assault and his other behaviour and this demonstrates a significant lack of insight on his part. It is her case that as a result of what happened to her partner, and what she asserts have been efforts to stalk and intimidate her, she is extremely frightened of the father and this must have implications for her capacity to properly parent the child to the full extent of her abilities.
Given the father’s conduct, it must be the case that she will remain the child’s undisputed carer for the indefinite future. Therefore considerations surrounding her emotional security and need to feel safe and secure must be given a great deal of weight by the court such that it is not currently in the child’s best interest to spend any time whatsoever with the father.
On the other hand, the father asserts that he is a loving and insightful parent who has hitherto been significantly and regularly involved in caring for the child. He concedes he is currently facing serious criminal charges. It is clear that these charges will take a possibly extremely lengthy period of time to pass through the courts, particularly if, as is his current intention, the father pleads not guilty, which is his entitlement.
Accordingly, it is his case that the risk of the child losing a potentially highly significant parental relationship with him is one which is too great for the court to countenance given the improbability of him doing anything to physically harm the child, whom he loves. In these circumstances, it is his case that any risk, which he represents to the child can be ameliorated by a regime of lay supervision to be provided by his mother.
As with many cases, arising at the interim stage, this is a case centred on risk and its assessment. The risk arising from the child being exposed to family violence and its sequellae; the risk of disruption to her primary care relationship being balanced against the risk of her losing a meaningful level of relationship with her father.
At the outset, it is important to point out to all concerned, that I am not deciding the case today on a final basis. In addition, there is much evidence that remains outstanding. My focus must remain on what I consider to be the best outcome for the child concerned, at this stage, notwithstanding the incomplete and provisional nature of much of the evidence.
BACKGROUND
The parties to the proceedings are Mr Gadella and Ms Kelks. They are the parents of X born in 2017.
The mother initially began marital property proceedings on 25 June 2021 in the Priority Property Pools list (“PPP500”). This list applies to cases involving property pools of less than $500,000.00.
Given the modest extent of the property to which such applications apply, they do not require a supporting affidavit, as they are directed towards expeditious finalisation and the avoidance of unnecessary costs through the requirement to produce lengthy documents.
The father responded to the PPP500 application on 20 July 2021 and raised issues relating to the parenting of X. On both an interim and final basis, he sought orders to spend substantial and significant time with X, as well as on special occasions, such as her birthday; Father’s Day; Easter; and at Christmas.
Because he had raised parenting issues, he was required to file an affidavit in support of his application. The mother is extremely critical of him for not being candid about his circumstances at the time, particularly the fact that he had been charged with serious crimes of violence involving her partner.
In general terms, the parties agree about the significant dates of their relationship. The father was born in 1989; the mother was born in 1993. They met in 2013/14; married in 2017; and separated in early-2018. X is their only child.
The father’s case, in respect of spending time with X, can be summarised as follows:
·Between the date of the parties’ separation in May 2021, he had spent regular time caring for X each week. He estimates that he cared for her on two overnight periods per week;
·Prior to separation, he was involved in every aspect of X’s care, including bathing, feeding and changing her;
·Although Ms Kelks was to be regarded as a wonderful mother, her attitude towards him had changed in December 2020, when she had commenced another relationship;
·He denied that he had ever been physically violent towards Ms Kelks;
·The mother’s current partner, Mr B, was and is a violent criminal with a history of drug use, including methamphetamines. It was alleged that he was a member of a motorcycle gang.
Essentially, it is the father’s case that he has a very close and loving relationship with X and is a doting parent. In addition, he asserts that his mother, Ms C also has a close relationship with the child and, until recently she and the mother were close and Ms Kelks relied on her for assistance in minding X, when she was at work. Underpinning Mr Gadella’s case is the contention that the mother has unreasonably ceased his relationship with X because of her involvement with Mr B.
In his affidavit material, the father conceded that he had not spent any time with X since 3 May 2021, when he had been arrested and charged with two criminal offences. These offences involved allegations that he had driven a car, into a person, at a service station. The person concerned was not identified by him nor were the circumstances surrounding the charge. Mr Gadella conceded that he had been refused bail for a period of around three weeks following being charged.
The mother filed an amended application, in which she set out her proposed orders in respect of X on 31 August 2021. At this stage, it was her position that she should be conferred with sole parental responsibility for X and the child should live exclusively with her.
As a consequence, it is her position that there should be no time spending orders made in respect of Mr Gadella and X and that he should be restrained by injunction from attending at any childcare facility to analogous institution which X may attend from time to time.
In support of her position, the mother filed an Affidavit, the significant contents of which can be summarised as follows:
·She had been subject to significant incidents of both physical and verbal family violence during the parties’ relationship, particularly after X had been born;
·He had thrown objects at her;
·He had choked her;
·At separation, he had assaulted her and threatened to drop a television set on her head;
·After separation, around September 2019, in the presence of the child, he had struck her in the face, punched a hole in the wall of the child’s nursery, thrown a piece of furniture and attempted to strangle her;
·Ms Kelks asserted that X had been frightened by this conduct, which had caused her to scream hysterically;
·After June of 2020 the father had threatened to drive his car through the window of the barbers’ shop where she worked and to come for her if she introduced anyone to X;
·Although she had attempted to keep her address from Mr Gadella, he had come to her home and banged on its windows;
·He had sent her text messages which she had interpreted as threatening.[1]
[1] See Affidavit of Ms Kelks dated 31 August 2021.
It is the effect of the mother’s evidence that it was her perception that the father’s intimidating behaviour towards her was escalating and she was becoming increasingly frightened of him. In this context, she asserted that the father had deliberately driven his motor vehicle into Mr B at a service station in Suburb D on 28 April 2021, causing significant injuries to both his legs.
There is no controversy between the parties that the father had been remanded from the end of April for a period of approximately 24 days. Thereafter the mother alleges the father attended at her workplace on 27 May 2021 and sought information about the whereabouts of Mr B. She alleges he threatened her as follows:
If I do time, I’ll shoot him. You haven’t let me see my daughter. Mum has been contacting you to have her and you haven’t written back.[2]
The mother alleges that whilst making these statements, the father was angry and gesticulating in her face.
[2] Ibid at [35].
The mother’s evidence is that she has been in constant fear of Mr Gadella in the period since and as a consequence has ceased her employment; changed X’s kindergarten; and now mainly resides with friends. She disputes that the father was as involved with the child, prior to April 2021, to the extent to which he alleges. She concedes he saw her approximately once a week or so between the hours of 11.00 am to 4.00 pm.
It is the mother’s evidence that X has recently become hyper-vigilant and becomes anxious when the doorbell rings. She has taken to hiding herself and expressed fear that daddy is coming to get us. She denies that Mr B is an associate of any criminal motorcycle cartel. Rather, she alleges that Mr Gadella himself has been involved in the manufacture of amphetamines and its sale to addicts.
When these competing applications came into court for the first time on 16 September 2021, I was struck by the diametrically opposed positions of the parties, particularly in respect of the gravamen of the incident of 28 April and the extent of Mr Gadella’s involvement in it, particularly given it was Ms Kelks’ position that he had been charged with attempted murder.
It seemed to me to be an extraordinary omission on Mr Gadella’s part that he had not disclosed the connection between him being charged with an extremely serious criminal offence and a person associated with the mother, given the emphasis the applicable legislation places on family violence.
In these circumstances, I ordered that Mr Gadella file a further affidavit setting out the details of the charges against him. At this stage I made interim orders that X live with the mother and restraining the father from attending at her home or kindergarten. The case was adjourned until 9 December 2021 for interim hearing.
In the meantime the father has proposed that he spend time with X, during daylight hours, subject to the supervision of his mother. In the alternative, he sought professionally supervised time, at a Children’s Contact Centre.
However, his counsel, Ms Hume emphasised the significant delays arising for parents accessing such services in the context of what she characterised as a very significant relationship for X, which had been abruptly severed.
In this context, it is Mr Gadella’s position that the risk of any harm coming to X must be assessed as being objectively minimal, particularly if her paternal grandmother is present and supervising. On the other hand, the risks inherent in X losing the opportunity to have a meaningful level of relationship with a person of great significance to her in the form of her father must be considered great indeed.
Essentially, Ms Hume asserts that the risks arising for X of losing a warm, spontaneous and intimate relationship with her father are far greater than the risk Mr Gadella actually represents to X.
In this context, Mr Gadella points to the fact that he is contesting the charges laid against him and may possibly be acquitted of them. However, it may be many months, indeed years, until a trial can be held in the District Court.
During this period, there must be a very real risk that X’s sense of her relationship with her father will wither and die, to the child’s long term emotional detriment. For all intents and purposes, she will be deprived of any relationship, let alone a meaningful one, with her father.
As directed, the father filed a more detailed affidavit, in respect of the circumstances surrounding the criminal charged laid against him on 15 November 2021, as well as an affidavit from his mother, Ms C indicating her willingness to be a supervisor of time. She also deposed as to her previous effective relationship with Ms Kelks, which has now broken down.
In addition, Ms C has deposed of her close relationship with X and the fact that one of her children, E aged 11, also has enjoy a close and loving relationship. Neither the paternal grandmother nor the uncle have interacted with X since April. Ms C has been married for 27 years and lives next door to her.
The father was bailed on 24 June 2021 subject to a living and reporting conditions. He is not to approach Mr B. He is charged with aggravated intent to cause harm, leave the scene of an accident and failing to answer who was the driver of a vehicle. He has not as yet been committed for trial. He acknowledges that he was originally charged with attempted murder but deposes that this charge was withdrawn very soon after it was laid.
Mr Gadella denies he has ever been violent towards the mother and points to the fact that there is no corroborating evidence to support the mother’s allegations, such as police attendance. He reiterates his earlier concerns about Mr B and alleges that it is the mother’s family and Mr B who are associates of a motorcycle gang and it is they who have the criminal and drug connections rather than him.
It is the father’s position that the mother has understated his previous level of involvement with X and, as such, it is inevitable that she will be missing him and other members of her paternal family and as a consequence she will be a confused and unhappy child. He has attached numerous happy photographs of him engaging with X and a number of text messages between him and Ms Kelks, which he asserts indicate that prior to April 2021, the two had an effective co-parenting relationship.
Mr B has also filed an affidavit in the lead up to the current interim hearing. He did so on 26 November. He confirms he and the mother have been in an intimate relationship since the end of 2020 but do not live together. He deposes that he has never formally met Mr Gadella but obviously knows of him and what he looks like.
The effect of his evidence is that he became aware that the mother was being harassed by Mr Gadella via social media posts. As a consequence he contacted the father by phone to get him to stop. The two had a heated conversation, which Mr B terminated. Later he received a phone call from Mr Gadella requesting to meet him at a service station. He agreed to meet.
At the service station, he parked and exited his vehicle to go and buy a drink from the control booth. On his way, he heard a car driving at speed behind him. He was unable to jump out the way and was hit on his lower body, causing him to be pinned between two vehicles. He was severely injured suffering a compound fracture to the right tibia and fibula; de-gloving to his left leg; and multiple lacerations. He was hospitalised and required surgery. He has not been able to return to work.
What is the basis of Mr Gadella’s defence is unknown to me. In addition, I have not been advised as to whether it is alleged he has made any admissions to police in respect of the charges against him. It is Mr B’s evidence that he recognised Mr Gadella from photographs shown to him prior to the incident by Ms Kelks and from SAPOL identity photographs.
The effect of Mr B’s evidence is that Mr Gadella has a distinctive appearance having a tattooed face, shaved or no hair on his scalp and a dark complexion. It seems likely that the issue regarding identification will loom large at any trial of the matter. However, as is his entitlement, Mr Gadella has not provided details of his defence.
Mr B further deposes that, on the father’s release from custody, he (Mr B) was contacted by an unknown person by telephone who threatened to make him brain dead and to meet him at OTR again. More recently again, it is Mr B’s evidence that he has been contacted by some other parties who have demanded that he sign a further police statement retracting his identification of Mr Gadella and provide a description of his assailant which does not match that of Mr Gadella. Clearly, if true, these are extremely serious allegations and could form the basis of other charges, including an attempt to pervert the course of justice or suborn a witness.
LEGAL PRINCIPLES APPLICABLE
The nature of an interim hearing
As indicated at the outset of these reasons for judgment, this is an interim hearing. Interim hearings very often arise against a background of serious family crisis and controversy. Obviously this is the situation in the present matter. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
Accordingly, the evidence available before the court at the interim stage is limited. As a consequence, any orders made by the court, at this stage, are provisional in nature, pending a further and more detailed inquiry or series of inquiries. The parties, in the present matter, need to bear in mind that I am not currently deciding arrangements for the care of X on a final basis.
Given the nature of the hearing, the various factual issues in dispute between the parties cannot be resolved in the context of these interim proceedings. In addition, at the interim hearing stage it is rarely the case that there has been sufficient time for any independent and expert evidence to be prepared, evaluating the case from the perspective of the child concerned.
In this particular case, the nature of X’s relationship with her father in particular is highly controversial as is the issue of whether she is fearful of him as a consequence of either having been exposed to family violence in the past or because of her mother’s recent presentation. In due course, it seems inevitable that a Family Report should be prepared which will examine these issues and many others.
The Full Court has described the nature of the hearing, at the interim stage, as being significantly curtailed. In these circumstances, it has cautioned first instance courts, such as this one, about being drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.[3]
[3] See Goode & Goode (2006) FLC 93-286 at 80,901 [68]
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
The need for such expedition dictates that the hearing concerned should be truncated. As a consequence, such a shortened hearing does not allow any extensive examination of the relevant evidence, particularly through a process of cross-examination.
As a consequence, the evidence available before the court at the interim stage is limited and any orders made by the court, at this stage, must be provisional in nature, pending a further and more detailed inquiry or series of inquiries in to the evidence, particularly that which has been subject to cross-examination.
Accordingly, at the interim stage, the court is directed to look to less contentious matters, such as any facts which are either agreed or obvious and issues which are not in dispute, particularly prior care arrangements and the current circumstances of the parties and any children concerned.
The parties disagree any about many significant issues, the chief of which is the extent of Mr Gadella’s involvement with X and whether he has been violent towards Ms Kelks and a member of her family both before and after the parties separated. What cannot be in doubt is that Ms Kelks has been the undisputed major carer of X since at least the date of the parties’ separation and on the basis of Mr Gadella’s own evidence, she is a wonderful mother.
It is also apparent, given the nature of the charges against him, Mr Gadella is not in a position to assume the full-time care of X and her care must remain with her mother. In these circumstances, in my view, it must be the case that considerations regarding the maintenance of Ms Kelks emotional equilibrium must be given a significant degree of weight.
How the court determines a child’s best interests
At the outset, it is to be noted that, although the nature of the hearing is different at the interim stage, as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975 (“the Act”).
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration.[4]
[4] Family Law Act 1975 (Cth) s 60CA.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
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.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
Accordingly, the legislature has directed the court, in respect of how a child’s best interests are to be secured, to give pre-eminence to protective concerns raised in respect of the child’s exposure to abuse, neglect and family violence. Although the court cannot overlook the benefits likely to accrue to a child from meaningfully interacting with a parent, it must give greater weight to protecting children.
DISCUSSION
Necessarily, how this balance is to be achieved, to secure an outcome consistent, to the maximum extent, with the best interests of the child, must depend on the idiosyncratic circumstances of each case. It must also turn on the nature of the hearing before the court and the level of evidence available. In this case, again I hasten to emphasise that the evidence currently available is extremely limited and the case itself has possibly a long way to go yet.
Clearly, the main emphasis in the father’s case is on the benefits X is likely to derive from having a meaningful level of relationship with him, which need to be assessed in the context of the possible detriment she will suffer if she no on-going involvement with him, potentially for the central years of her early childhood, whilst he awaits trial in the District Court. At present, X has no active relationship with him at all, let alone one which has some level of meaning in the sense envisaged by the applicable legislation.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright (“Mazorski”),[5] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[5] See Mazorski v Albright (2007) 37 Fam LR 518, 526 [26] (Brown J).
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share an experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful, parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
I acknowledge that it must be the position at present that Mr Gadella is not involved in X’s life at all, in the sense envisaged in Mazorski. It also seems clear that, notwithstanding the dispute between the parties as to how often Mr Gadella engaged with X, the relationship between the two was frequently a happy one, which Ms Kelks was open to supporting.
However, the gravamen of her case is that Mr Gadella’s violent and controlling behaviour, directed towards her initially and more recently towards Mr B – who is to be regarded as part of her (Ms Kelks’) family and therefore, to some extent a member of X’s family – has been escalating in its potency to the extent it now represents a multifaceted threat to X’s wellbeing.
Essentially, it is her case that the level of family violence demonstrated in this case is such that it would be unacceptable for the court to make any orders authorising Mr Gadella to spend any time whatsoever with X at this stage, regardless of what safeguards are provided by Ms C.
In this context, as indicated in the introduction to the judgment, issues arise as to the nature of the risk identified and its quantification. This assessment must be done at the interim stage and cannot be deferred until final hearing. In addition, when further evidence comes to hand, it may be necessary for the level of risk to be revisited. Most usually, this occurs after the production of a family report or a Children’s Contact Centre Report.
Family violence is defined by section 4AB(1) of the Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
•an assault;
•a sexual assault or other sexually abusive behaviour;
•stalking;
•repeated derogatory taunts;
•the killing of an animal;
•preventing the maintenance of family ties;
•intentionally damaging or destroying property; and
•the withholding of financial support.
The above incidents are not, in themselves, definitional of family violence. Rather they are examples of conduct which may constitute family violence. The definition to be applied is contained in section 4AB(1). The essential elements of the definition are that the behaviour in question, to amount to family violence must coerce or control another family member. The behaviour need not be violent, in itself, or cause fear in the person to whom it is directed. It is a definition directed towards coercion.
The impugned conduct is centred on power in relationships and the use of such power to control another family member. It is Ms Kelks’ evidence that she has been assaulted by Mr Gadella, during their relationship and after their separation, he has threatened and stalked her. The gravamen of her evidence is that Mr Gadella has attempted to control the person with whom she becomes intimately involved.
I accept that Mr B is to be regarded as a member of X’s family given his relationship with Ms Kelks. Clearly, if his evidence is accepted he has been exposed to a significant incident of family violence, which must be intimidating for Ms Kelks, although she was not the direct object of it.
In my view, it must also have potential significance for X, although clearly she was not present during the incident itself. The court is still required to consider the possible consequence, for a child, of being exposed to family violence, including if that exposure comes indirectly or second hand.
In respect of the allegations of family violence, which occurred during the parties’ relationship, it is true that there is no independent evidence to support Ms Kelks’ evidence. This does not mean the court should necessarily discount her evidence at this stage. Rather, in assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms.
Family violence, by definition, occurs most usually within the family and as such is not open to outside scrutiny. Most usually, it occurs behind closed doors within the private confines of a family home. Accordingly, it is very often difficult, if not impossible, for there to be independent verification that family violence has occurred for protracted periods, during a relationship, if relevant authorities have only been involved in one extreme event, which cannot be concealed. However, “the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic”.[6]
[6] See Eaby & Speelman (2015) FamCAFC 104 at [21] (Ryan J).
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she “sees or hears family violence or otherwise experiences the effects of family violence”.
Again, in section 4AB(4), the legislature has included examples of conduct which may amount to such exposure, which include:
•overhearing threats;
•seeing or hearing an assault;
•comforting or providing assistance to a member of the child’s family, following an assault;
•cleaning up after property has been damaged; and
•being present when police attend an incident involving an assault.
Again, these examples are not definitional of whether a child has or has not been exposed to family violence. What is pivotal is that the child concerned experiences its consequences. It is Ms Kelks’ case that X was directly exposed to family violence in September of 2019, when she was aged a little over two years of age. It is likely to be controversial as to what recollection, if any, she has of this incident.
In addition, there can be no doubt that X has not been directly exposed to the incident involving Mr B or the allegations involving the threats made to him and her mother in more recent times. However, X has been exposed to her mother’s reaction to these incidents and to the appearance of Mr B himself. It is unclear to me how X has assimilated these various matters.
In this context, it is Ms Kelks’ evidence, as yet untested and unsupported by any expert opinion that X has begun to display signs of hypervigilance and anxiety which are associated with her father. I am not in a position to assess the veracity of this evidence in the context of the current proceedings. However, in my view, given the structure of the Act, they are matters which must be considered and given appropriate weight.
If Ms Kelks and Mr B’s evidence is ultimately accepted it must be the case that Ms Kelks has ample reason to be extremely fearful of Mr Gadella. Her case is that he has threatened her, in the context of pursuing another relationship, choked her, threatened to drive his car into her place of work and then actually carried out this threat with her current partner.
The potency of such violent actions must be regarded as at the higher end. These are not a response to a stressful situation and a temporary loss of control. In particular, if true, the action against Mr B were premeditated and designed to have a high emotional impact on those involved with him, not just Mr B himself.
Accordingly, I am not in a position to discount the fact that X herself has been exposed to an extremely serious incident of family violence in April of this year and, as such, may very well be struggling emotionally with its consequences, given the impact of what occurred on her mother, who is and has been her undisputed primary carer. In my view, these factors behove the court to take a conservative approach in its assessment of the risk arising for X.[7]
[7] Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120] (Faulks DCJ, Boland and Stevenson JJ).
I acknowledge that the court’s task, at this stage, is to assess the risk arising for X of spending time with her father in the current conflicted situation of her parents. It is not my role to punish Mr Gadella or indeed to determine his guilt or otherwise. Rather my task is prospective in nature, involving an assessment of the risk, including the risk of psychological harm arising for X of spending time with her father.
It is not an easy task by any means. It seems improbable that Mr Gadella or his mother would neglect or abuse X. However the child will have to be exchanged between the parties in a highly charged and volatile emotional environment, characterised by the high possibility of extreme anxiety on the part of one parent.
It is not beyond the bounds of possibility that Ms Kelks herself will be rendered extremely anxious at the prospect of X spending time with a person of whom she is personally greatly fearful. Indeed, it would be extraordinary if Ms Kelks was not frightened. The effect of her evidence is that she has moved, stopped working and now leads a circumspect life.
If X is already anxious or fearful, she may pick up on her mother’s fear. Given what the mother has said about how she is currently conducting her life, it would seem improbable that X has not been exposed to her mother’s anxieties. I do not regard these as trivial or inconsequential risks, given the extraordinary circumstances which currently prevail. In my view, these circumstances, if true, are characterised by a complete disregard for the law and the physical integrity of a member of X’s family.
In Deiter & Deiter,[8] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.[9]
[8] See Deiter & Deiter [2011] FamCAFC 82.
[9] Ibid at [61] (Finn, Thackray and Strickland JJ).
The Full Court in Slater & Light expressed the task of assessing risk in the following terms:
The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.[10]
[10] Slater & Light [2013] FamCAFC 4 at [37] (May, Strickland and Forrest JJ), quoting Johnson & Page (2007) FLC 93-344 at [68] (May, Boland and Stevenson JJ).
Given the contents of section 60CC(2)(b), the assessment of risk entails the assessment of the possibility that a child will suffer some form of psychological harm in the context of both past and potential future exposure to family violence.
In objective terms, X may very well be physically safe, for any short periods of time, which she spends in the care of her father, subject to the oversight of her paternal grandmother. But this does not give account to the mother’s subjective level of anxiety and the emotional quotient likely to arise from such a dynamic, not only from the mother’s perspective but also from that X, who is dependent on her mother as the major, if not sole, source of psychological stability.
In the extraordinary circumstances of this case, there must be a very significant risk that X will pick up her mother’s level of anxiety. This process may be subliminal, but, from the child’s perspective, will be just as real nonetheless. In my view, the court’s responsibility, in advancing X’s best interests is to ensure her emotional stability and that of her primary carer.
I acknowledge that Ms Kelks herself was not directly exposed to the incident involving Mr B and nor was X. In my view, this does not reduce the potency of the violence arising in the case. At its highest, the conduct involved is highly violent, premeditated, directed against a person with whom the mother is significantly involved and demonstrative of a complete level of lawlessness. These features have the potential to invoke fear in even the most resolute of individuals.
In my view, at this stage, it is incumbent on the court to examine the extent of the risk arising for X of experiencing some form of emotional harm as a consequence of spending time with her father, even in the highly constrained circumstances proposed by him. In my view, this risk is complex and potentially multi-faceted. It encompasses exposure to her mother’s anxiety, both before and after the relevant periods and the possible risk that Ms Kelks herself will be compromised, by her anxiety, in her capacity to provide both emotional and physical care to X.
In B and B [11] the Full Court said as follows:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
[11] B & B (1993) 16 Fam LR 353, 368 (Fogarty, Baker & Purvis JJ).
In all the circumstances of this case, particularly the volatile relationship between the paternal and maternal aspects of X’s family, occasioned by an incident of extreme violence allegedly involving Mr Gadella, which followed episodes of what, if established, must constitute incidents of serious coercive behaviour, it is my view that there is an unacceptable risk of X suffering some species of emotional harm, if the orders proposed by the father are made, notwithstanding the protective influence of his mother.
Given that reasonable grounds have been established to lead to the belief that X has been exposed to family violence and in my view it would not be appropriate to do so, the presumption of equal shared parental responsibility is rebutted at this stage of proceedings and accordingly I do not have consider X spending either equal time or substantial significant time with either of her parents.[12]
[12] Family Law Act 1975 (Cth) s 61DA.
More significantly, given the child’s age and the nature of her relationship with her mother, I do not think it would be in best interests to spend time with her father in the manner he proposes. In my view, the case requires a conservative and measured response.
In my view, the next step is for the court to assemble further evidence in respect of these issues from an independent and expert source. Accordingly, I propose to order that a Family Report be ordered, which will examine the nature of X’s relationship with each of her parents and her current perception of the dynamic of her family.
I appreciate this will take some time to be prepared but, pending the receipt of that report, I do not consider that it would be X’s best interests to spend time with her father, even subject to the stricture of supervision, either lay or professional.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 16 December 2021
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