KHALID & KHALID
[2020] FamCA 109
•27 February 2020
FAMILY COURT OF AUSTRALIA
| KHALID & KHALID | [2020] FamCA 109 |
| FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the child – Where each party seeks competing sole parental responsibility and live with orders – Where the mother seeks orders that the child spend only supervised recognition time with the father once every three (3) months – Where the father seeks orders that the child speak with the mother once per week for 30 minutes and graduate to supervised time for two (2) hours per fortnight after the mother undertakes psychological intervention – Where the Independent Children’s Lawyer seeks orders be made in accordance with those sought by the mother – Where there is a history of severe disputation and conflict between the parties – Where the father is found to have engaged in deliberately manipulative conduct to encourage the child to make false allegations that she has been physically abused by the mother – Where the father is found to have encouraged the child to record negative feelings about the mother including calling the mother “stepmother” – Where the father is found to have denigrated the mother and interrogated the child with a view of extracting damaging information concerning the mother – Where the Court finds that there is a probability that the father will engage in similar conduct in the future – Where, as at November 2018, there had been 36 child protection reports and six (6) investigations in respect to the child – Where the allegations of abuse by the mother have not been substantiated – Where the Court finds that there is an unacceptable risk of emotional and psychological harm in the unsupervised care of the father – Where the Court makes Orders in accordance with those sought by the mother and Independent Children’s Lawyer including that the father spend time with the child on an indefinite supervised basis and for that time to be restricted to recognition time. |
| Family Law Act 1975 (Cth) s. 43(1)(c), 43(1)(ca), 60B(1), 60CA, 60CC, 61DA, 65DAC(2), 65DAC(3), 65DAA, 69ZT(1)(a), 79ZX(3)(b) Evidence Act 1995 (Cth) s. 140 |
| A v A (1998) FLC 92-800 The Hon. John Fogarty AM, ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australia Journal of Family Law 249 The Hon. Richard Chisholm, “Unacceptable risk – a comparison of the Family Law and Care jurisdictions,” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15 |
| APPLICANT: | Ms Khalid |
| RESPONDENT: | Mr Khalid |
| INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker |
| FILE NUMBER: | CAC | 128 | of | 2014 |
| DATE DELIVERED: | 27 February 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | McClelland DCJ |
| HEARING DATE: | 28, 29, 30 August 2019; 14, 15 November 2019; and 9 December 2019. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Haughton |
| SOLICITOR FOR THE APPLICANT: | Infinity Legal |
| THE RESPONDENT IN PERSON. |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ridge |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker |
Orders
That all previous parenting Orders be discharged.
That the child, D born … 2009, live with Ms Khalid (“the mother”).
That the mother have sole parental responsibility for D.
That Mr Khalid (“the father”), his agents or servants be restrained from removing D from the mother except pursuant to an Order made under the Family Law Act 1975 (Cth).
That the father spend supervised time with D for two (2) hours once every three (3) months at Suburb B or another agreed supervised contact centre at the father’s sole cost.
That the father only speak English at those times the child spends time with him in accordance with Order 5.
That the father is hereby restrained from contacting the mother and D unless in case of an emergency in relation to D whereby the parties shall communicate via text message only.
That the father is restrained from causing any other person from contacting the mother or D by any means whatsoever.
That the mother shall provide to the father one (1) email per month detailing D’s health, education and welfare and shall enclose any reports or letters from D’s education provider and one photograph and the father is restrained from responding to this correspondence.
For the purposes of Orders 6 and 8, the father shall provide his mobile telephone number and email address to the mother, via text message, only in the event that his number or email address changes.
That if, after a period of 12 months, the mother decides to travel internationally with D, the mother shall inform the father by email of the dates and location of the proposed travel.
That the mother shall inform the father by email in the event that she chooses to relocate outside the Canberra/Queanbeyan Region with D but the mother is not obliged to provide the father with the mother’s residential address.
That the father is hereby restrained and prohibited from contacting and attending D’s educational provider or medical practitioners by any means whatsoever.
That until further order each party, Ms Khalid born … 1979 and Mr Khalid born … 1979, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child D born … 2009 from the Commonwealth of Australia for a period of 12 months from the date of these Orders
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the name of the said child D born … 2009 on the Airport Watch list in force at all of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the watch list until the court orders its removal.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalid & Khalid has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: CAC 128 of 2014
| Ms Khalid |
Applicant
And
| Mr Khalid |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern competing parenting Applications made by Mr Khalid (“the father”) and Ms Khalid (“the mother”), collectively referred to as “the parties”, in respect of the child, D or (“the child”) born in 2009.
The mother has an older child, C born in 2005. C was born prior to the mother’s relationship with the father. C has not spent any time with the father since the parties’ final separation in mid-2014 and is not subject to the proceedings other than to the extent that he would potentially be impacted by the first Order that I have made in these proceedings which is to the effect that these orders supersede all previous Orders. This includes a previous Order which required the mother to encourage C to spend time with the father, his stepfather.
There has been a long and protracted history of litigation between the parties. Since the final Orders made by Judge Neville in 2015, there have been 25 Applications filed by the parties, including those for Contraventions, Final Orders and Applications in a Case.
As noted by the Family Report writer, Ms OO, the substantial issues in dispute between the parties are allegations and counter allegations of physical and emotional abuse of D. As will be discussed, underlying those allegations are issues regarding the co-parenting relationship between the parties which, unfortunately, continues to be dysfunctional.
The father has alleged that the mother has abused D and that she poses an unacceptable risk to the child. Based on those allegations, in his current Application before the Court, the father seeks orders that D live with him and have contact with the mother over the telephone for 30 minutes once every week and for C to spend time with the father as per C’s wishes.
The mother, comparatively, seeks that D remain living with her and that the child spends supervised time with the father once every three (3) months. The mother asserts that the father has engaged in manipulative conduct concerning the child with a view to encouraging the child to think poorly of the mother and, further, to make false allegations that the mother has physically and psychologically abused her.
A significant aspect of this matter is the extent to which D has been drawn into the parties’ conflict. This includes numerous reports being made to the Australian Capital Territory Child and Youth Protective Services (“CYPS”) as well as to law enforcement authorities.
Background
There is an extensive history to this conflict. Much of that history is considered in the decision of Judge Neville dated 15 June 2015.[1] While I am not bound to accept factual findings of his Honour, save in respect to one (1) event that occurred in December 2014, I have not found it productive to revisit the factual contest that was before his Honour in those proceedings.
I will now, however, set out the agreed facts relevant to this decision and, where dispute exists, the parties’ more significant allegations and contentions. I have set out those allegations and contentions primarily to give an indication of the extent of past and ongoing conflict between the parties. I will subsequently, in these reasons for judgment, record the findings of fact that I have made where that has been necessary to arrive at my decision.
In 1979, the father was born in Asia. He is currently aged 40 years.
In 1979, the mother was born in Asia. She is currently aged 40 years.
In 1985, the husband’s current partner, Ms NN, was born in Asia. She is currently aged 34 years.
In 2000, the father migrated to Australia.
In 2005, the mother’s son, C, was born in Asia to a previous partner. He is currently aged 14 years. He has not spent time with the father, his stepfather, since the parties separated in May 2014. C advised Ms OO, the Family Report writer, that he does not wish to have a relationship with the father.
In 2007, the parties married in the Islamic religion in India.
On 4 September 2007, the mother and C migrated to Australia sponsored by the father.
In 2007, the parties married in Australia.
In 2009, the parties’ child, D, was born. She is currently aged 10 years.
In 2013, the father alleges, that after he had taken D to the hospital for being unwell, the mother had struck her. The father asserts he then called the Police who asked the mother to leave the house. The father further alleges that, in April 2013, the mother assaulted him.
In 2014, the parties initially separated.
On 29 January 2014, the mother obtained an Interim Domestic Violence Order (“DVO”). On the following day, the mother initiated proceedings in the Federal Circuit Court of Australia. In those proceedings, Orders were made for the recovery of D from the father and the return of D to the mother’s care.
The mother alleges that, on 19 February 2014, she was approached by members of the parties’ cultural community who implored her to consider reconciling with the father.
In mid-March 2014, the mother withdrew her DVO Application.
On 25 March 2014, the parties’ discontinued the Federal Circuit Court of Australia proceedings.
The mother contends that, on 29 March 2014, in response to community pressure, she and the children returned to live with the father.
In April 2014, the parties’ and children travelled to Asia to visit the father’s family. The mother alleges that, before the father returned to Australia on 25 April 2014, he confiscated the passports of her and the children and refused to allow them to leave the house. The mother alleges that, with the assistance of a neighbour, she and the children left the paternal family’s house and travelled to the Australian High Commission. The mother contends that it was only with the assistance of Australian officials attached to the Australian High Commission that she was able to return to Australia with the children on 14 May 2014.
The father asserts that, on 1 May 2014, the parties separated on a final basis.
On 15 May 2014, an Interim DVO was granted to the mother.
On 19 May 2014, the father applied for a DVO, however, his Application was unsuccessful.
On 20 May 2014, the father re-initiated proceedings in the Federal Circuit Court of Australia.
In July 2014, the father and his current partner, Ms NN, met online. In giving oral evidence, Ms NN attested that D commenced calling her “mother” from the time she engaged in video communication with the father from July 2014.
On 11 August 2014, the parties withdrew their respective DVO Applications.
On 8 September 2014, the father took D to the doctor after she complained of stomach pain. The father alleges that D told the doctor that the mother had hit her in the stomach, back and cheeks.
The mother attests that, on 10 September 2014, the father contacted the mother and informed her that he would not return D to her care unless C spent time with him.
The mother contends that, on 10 November 2014, she spoke to D at her school and was informed by the Principal that the father had threatened to withdraw D from the school if the Principal facilitated contact between the child and the mother in the future.
The father alleges that, on 2 December 2014, the mother assaulted the father’s sister.
On 19 December 2014, Judge Neville made Orders that the child live with the father four (4) nights per week and spend three (3) days per week with the mother.
The mother alleges that, on 21 December 2014, at changeover, the paternal aunt refused to hand over D to an agent of the mother. The mother further alleges that, on 22 December 2014, she was advised that the father had instructed the paternal aunt to withhold D from the mother while the father was overseas in Asia for a period of three (3) weeks. The mother contends that the paternal aunt only agreed to hand over D to her care after the mother contacted the Police.
The mother contends that, on 11 January 2015, the father assaulted the mother during handover. It is not disputed that the Police attended an incident involving the parties on that day. The mother contends that, as result of injuries which she sustained at the hand of the father, it was necessary for her to seek medical assistance on the following day from Dr PP. On 14 January 2015, the mother obtained an interim DVO in respect to events which occurred between the parties on 11 January 2015.
The mother alleges that, during February 2015, the father stopped sending D to school in order to prevent contact occurring between the mother and child.
On 20 March 2015, Judge Neville made interim Orders which provided for D to live with the mother and spend time with the father on alternate weekends.
On 15 June 2015, final Orders were made by Judge Neville providing for the mother to have sole parental responsibility for D and C and for the children to live with her. These Orders also provided for D to spend time with the father from after school Friday until before school Monday on alternate weekends and school holiday time to be shared equally between the parents. Order 3 relevantly provided that:
There be no orders regarding time between C and the Father, save that the Mother should encourage C to spend time with the Father.
Both parties allege that D has refused to return to the other parent’s care when she is in their care. There is a long history of each parent withholding the child from the other parent’s respective care.
On 26 November 2015, the father filed the current Initiating Application for final orders.
In 2015, the father and Ms NN were married.
In September 2016, the CYPS assessed the father as being a person responsible for putting D at significant risk of emotional abuse.[2]
Orders were made on 6 September 2016 and on 21 September 2016 by Justice Gill permitting the mother to take D and C, respectively, to Asia from 10 November 2016 to 18 January 2017. On 16 November 2016, the mother and the children travelled to Asia.
On 16 January 2017, Ms NN and the father observed bruises on D’s back.
On 17 January 2017, the stepmother took D to see a doctor regarding the bruises he had observed. The father asserts he also attended but remained in the waiting room. The doctor reported that the bruises were “nontender” and looked superficial.[3]
On 31 January 2017, the Police spoke with the mother about complaints of physical abuse of D, namely that C allegedly struck her with her own belt and the mother struck her on the back with a wooden spoon. It was alleged the events occurred on or about 16 January 2017.
In 2017, the father and Ms NN’s child, QQ, was born. She is currently aged 2 years.
The father alleges that, on 10 October 2017, the mother forced the children to walk to school. The mother acknowledges that on occasions she acceded to the children’s request to walk to school but denies that it constituted abuse or neglect on her part.
The father asserts that, on 13 October 2017, D told him that the mother had hit her in the face. The father further asserts that, on the following day, D told him that the mother had kicked her out of the house and made her walk to school. The father took D to the Police Station to report the incident, however, no charges were pursued by the Police. The father then refused to return D to the mother.
On 15 October 2017, the father took D to the doctor and asserts that she told the doctor about her mother hitting her and that she screamed in pain when examined.
On 24 October 2017, Orders were made by Justice Gill for the Orders of Judge Neville made on 15 June 2015 to remain operative and for the father to return D to the mother. His Honour also granted an injunction that prevented the father from taking D to the doctor except for in a medical emergency. Further, the Orders also prevented the father taking the child to the Police or a child welfare agency without informing the Independent Children’s Lawyer. Finally, the orders placed the child on an Airport Watch list.
On 12 January 2018, CYPS attended the mother’s home and informed her that there were reports of her abusing the children.
In February 2018, CYPS assessed the father as being responsible for putting D at significant risk of emotional abuse causing significant harm. At this time, C reported to the CYPS worker that he has memories of abuse he and the mother suffered by the father.[4]
The mother alleges that, on 12 March 2018, the father was disseminating material to the parties’ cultural community regarding these proceedings.
On 25 May 2018, the mother took D to RR medical centre. The father alleges that the mother did not facilitate proper medical treatment of D, after he had informed her that D had complained of a tooth ache. Following this, on 1 June 2018, the father took D to Dr SS, dentist.
On 29 June 2018, the children’s school raised concerns with the mother about D’s absences and late attendance while she is in the care of the father.
On 10 September 2018, the father delayed returning D to the mother’s care suggesting that she was sick. On that day he took the child to the doctor for a medical certificate.
On 12 October 2018, CYPS attended the mother’s home and informed her they would be doing another appraisal of D’s care. There have been a total of 31 child protection reports and five (5) investigations in respect of D since January 2014.
On 6 November 2018, CYPS interviewed D at her school.
On 13 November 2018, CYPS performed a home visit with the mother.
On 23 November 2018, CYPS interviewed D and C at their school.
On 19 November 2018, CYPS performed a home visit with D and the father.
On 30 November 2018, CYPS performed another home visit with the mother.
In December 2018, over the Christmas period, the father alleges that the mother sent inappropriate text messages to the father after D was returned to her care in respect to Ms NN braiding D’s hair.
On 18 January 2019, CYPS advised that they have no concerns about D in the care of her mother.[5]
In January 2019, the mother travelled to Asia to visit her father who was in ill health. The mother left D in the care of the father at this time.
On 21 February 2019, the father attended D’s school and spoke with her without first seeking the consent of the staff. This was on the day immediately prior to an appointment scheduled for D to speak to the Family Consultant, Ms OO.
On 22 February 2019, the Family Consultant, Ms OO, interviewed the mother and the children.
Prior to the completion of the hearing, in 2019, the father and Ms NN’s second child, TT, was born.
D currently lives with the mother and her brother, C, and spends time with the father on each alternate weekend from after school on Friday until before school on Monday and for half of each school holiday period.
Applications
Orders sought by the mother
The mother seeks that orders be made in accordance with her amended Minute of Order (marked ‘Exhibit 5M’ in the proceedings), set out as follows:
1.That all previsous parenting Orders be discharged;
2. That the child D born 2009 live with the Mother;
3.That the Mother have sole parental responsibility for D;
4. That the Father, his agents or servants be restrained from removing D from the Mother except pursuant to an Order made under the Family Law Act 1975 (Cth).
5. That the Father spend supervised time with D for two hours once every three months at Suburb B or another agreed supervised contact centre at the Father’s sole cost;
6. That the Father is hereby restrained from contacting the Mother and D unless in case of an emergency in relation to D whereby the parties shall communicate via text message only;
7. That the Father is restrained from causing any other person from contacting the Mother or D by any means whatsoever;
8. That the Mother shall provide to the Father one email per month detailing D’s health, education and welfare and shall enclose any reports or letters from D’s education provider and one photograph and the Father is restrained from responding to this correspondence;
9. For the purposes of Orders 6 and 8 the Father shall provide his mobile telephone number and email address to the Mother, via SMS, only in the event that the number or email address changes;
10.That the Mother shall inform the Father by email in the event that she chooses to travel internationally with D and will provide to the father the dates and location of the proposed travel;
11.That the Mother shall inform the Father by email in the event that she chooses to relocate outside the Canberra/Queanbeyan Region with D but the Mother is not obliged to provide the Father with the Mother’s residential address;
12.That the Father is hereby restrained and prohibited from contacting D’s educational provider or medical practitioners by any means whatsoever;
13.That the Father pay the mother’s costs of, and incidental to, this application.
On the final day of hearing, 9 December 2019, in final submissions, counsel for the mother sought a variation of the orders proposed by the mother such that the father be restrained from speaking in any language other than English during the times that D spent with him. The mother further sought an order placing the child on an Airport Watch list with a view to preventing the child from being removed from the Commonwealth of Australia by the father. It was acknowledged that placing the child on an Airport Watch list would apply equally to both parents, however, that order was nonetheless pressed by counsel for the mother.
Orders sought by the father
The father initially sought that orders be made accordance with his Amended Initiating Application filed 8 November 2018, as set out below:
1.D, born 2009 lives with father.
2.The respondent can have phone conversation with D for 30 minutes each fortnight.
3.Father will give the respondent update about D once a month.
4.C Khalid born 2005 can spend time with D anytime he wants in Father's care authorised by the father.
5.Any family members of the respondent can contact D and spend time with her at Father's care authorised by the father.
6.All orders from 15 June 2015 is discharged.
However, several days prior to final submissions, the father emailed the Court and the other parties indicating that he sought the following orders:
1.D (born 2009) lives with the father and father has full parental responsibility for D.
2.D has 30 minutes phone conversation with the applicant once per week.
3.Current order for C remains unchanged.
4.C spends as time as he wishes to with D at father’s care.
5.The applicant goes through psychological therapy / counselling until the Doctor / Psychologist advises of ceasing the therapy.
6.Once the Doctor / Therapist advises of change in the applicant’s behaviour, an assessment is done by a professional psychologist selected by father.
7.Upon successful assessment, the applicant spends supervised time with D for 2 hours a fortnight.
8.Upon successful assessment, unsupervised time of 3 hours per fortnight commences.
9.Upon successful assessment of [Order] No 8, one full day per fortnight commences.
10.Upon successful assessment of [Order] No 9, overnight stay commences. Negative number of school weekend (i.e. week 1, 3, 5 etc), pick up on Saturday morning at 10:00 AM and drop off on Sunday afternoon at 5:00 PM.
11.Upon successful assessment of [Order] No 10, more overnight stays may be arranged upon agreement with father.
12.For all the above, if D wishes to spend extra times with the applicant, the father is to have that wish respected.
13.For [Order] no 10, pick up will be at father’s house and drop off will be at applicant’s house.
14.Family members of the applicant will have full access to spend time with D at father’s house. Overseas trips may be arranged to visit elderly relatives of the applicant if required and will be accompanied paid for by the father.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer seeks that orders be made in accordance with those proposed by the mother, save in respect to the orders sought by the mother concerning costs.
Evidence
The mother relied upon the following documents:
a)Amended Response filed 11 December 2018; and
b)Affidavit of the mother dated 1 July 2019.
The father relied upon the following documents:
a)Amended Initiating Application dated 8 November 2018;
b)Affidavit of the father dated 15 July 2019; and
c)Affidavit of Ms NN dated 8 November 2018.
The Independent Children’s Lawyer relied upon the following documents:
a)Family Report of Ms OO dated 9 April 2019.
The following exhibits were relied upon:
a)Tender bundle of annexures to the Affidavit of the mother (‘Exhibit 1M’);
b)Tender bundle of annexures to the Affidavit of the father (‘Exhibit 2F’);
c)Appraisal report of CYPS dated 5 November 2018 (‘Exhibit 3M’);
d)Family Report of Ms OO dated 9 April 2019 (‘Exhibit 4ICL’);
e)Amended Minute of Order sought by the mother (‘Exhibit 5M’);
f)Harmony Day certificate (‘Exhibit 6F’);
g)Bundle of cards, letters and artwork of D (‘Exhibit 7F’);
h)Initiating Application of the father dated 20 May 2014 (‘Exhibit 8M’);
i)Amended Initiating Application of the father dated 30 May 2014 (‘Exhibit 9M’);
j)Appraisal report of CYPS dated August 2014-15 (‘Exhibit 10M’);
k)Appraisal report of CYPS dated 8 September 2014 (‘Exhibit 11M’);
l)Medical report dated 27 September 2014 by Dr UU together with a letter from the Independent Children’s Lawyer dated 30 September 2014 (‘Exhibit 12M’);
m)Excerpt from Ms VV’s Family Report dated 14 December 2014 (‘Exhibit 13M’);
n)CYPS documents including an outcome report sent to the father (‘Exhibit 14M’);
o)Department of Immigration Form 888 (‘Exhibit 15M’);
p)CYPS progress note in respect to the intervention on 8 January 2018 (‘Exhibit 16M’);
q)CYPS further report and transcripts of interview with C on 7 February 2018 (‘Exhibit 17M’);
r)CYPS appraisal form dated 5 November 2018 (‘Exhibit 18M’);
s)Letter from Infinity Legal to the father dated 19 January 2018 (‘Exhibit 19M’);
t)Text messages between the parties (‘Exhibit 20M’);
u)Suburb J Medical Centre consent to release information dated 27 September 2014 (‘Exhibit 21M’);
v)ACT Education material produced on subpoena (‘Exhibit 22ICL’);
w)Letter produced by Ms NN to the Department of Immigration (‘Exhibit 23M’);
x)Letter from Canberra Registry to the mother dated 4 February 2019 (‘Exhibit 24ICL’);
y)Written submissions of the mother (‘Exhibit 25M’); and
z)Decision of Judge Neville, Khalid & Khalid [2015] FCCA 1597.
The law – concepts and principles
The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 60B(1) sets out the objectives of Part VII, which 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.
More generally, the Act makes it clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (s 43(1)(c) of the Act), and to protect them from family violence (s 43(1)(ca) of the Act).
The presumption of equal shared parental responsibility
Section 61DA of the Act relevantly provides:
(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.
In Dundas & Blake (2013) FLC 93-552 at 87,409, the Full Court held that s 61DA of the Act is mandatory in the sense that the presumption must be applied until the Court is satisfied that it would not be in the interests of the child for the presumption to apply. In that context, the Full Court said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 at 88,940, the Full Court said:
In our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
At the same time, it needs to be appreciated that ss 65DAC(2) and (3) of the Act provides that, in the event of an order being made for parents to have shared parental responsibility, then, in circumstances where that responsibility involves making a decision about a major long-term issue in relation to the child:
(2) The order is taken to require the decision to be made jointly by those persons. …
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
If an order for equal shared parental responsibility is made, the pathway set out in s 65DAA of the Act applies to the task before the Court in respect to making parenting orders that it considers to be in the best interests of the child. That is, the Court is required to apply a presumption that, in those circumstances, the child should spend equal or substantial and significant time with each of the parties.
For reasons which I subsequently explain, I am satisfied that it is not in the interests of the child for the parents to share equal parental responsibility and, in those circumstances, the pathway set out in s 65DAA of the Act does not apply. The focus of the Court is, therefore, on making such orders as the Court considers to be in the best interests of the child.
Determining what is in the best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to the children, the Court must regard the best interests of the children as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the children’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another. Those 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.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: ss 60CC(2)(b) of the Act.
Meaningful relationship
Section 60CC(2)(a) requires me to consider the importance of the child having a meaningful relationship with each of the parties. On the other hand, I must consider the issue of the risk associated with the child possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties.
In Sigley v Evor (2011) 44 Fam LR 439 (“Sigley v Evoy”) at [132], the Full Court, quoting Brown J in Mazorski & Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child.”
In McCall & Clark (2009) FLC 93-405 at 83,476, the Full Court said:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
In Finton & Kimble [2017] FCWA 106 at [37], Walters J said:
The Court is required to consider, as one of a large number of factors, the benefit to the child of having such a meaningful relationship.
In that decision, his Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster (2014) FLC 93-598 at 79,420, where the Court noted that:
… having a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both of their parents in the following terms:
…that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact's sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
It is important to appreciate that the legislative requirement is for the Court to consider making an order to promote the child having a “meaningful” rather than “optimal” relationship with both parents: Champness & Hanson (2009) FLC 93-407 at 83,502. In other words, a relationship may be less than optimal but nonetheless meaningful: Godfrey & Sanders (2007) 208 FLR 287 (“Godfrey”) at [33], [36]; Sigley & Evor at [182]. Moreover, the consideration of how a “meaningful relationship” is defined needs to be determined in the circumstances of each case: Godfrey (supra) at [36]; M & S (2007) FLC 93-313 at 81,387.
Protection from harm
The central issue in these proceedings is the issue of risk in terms of ss 60CC(2)(b) of the Act. In B and B (1993) FLC 92-357 (“B and B”) at 79,778, the Full Court said that the task before the Court is, essentially, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access. However, it is clear from s 60CC(2A) of the Act that greater weight is to be given to the primary consideration set out in ss 60CC(2)(b), that is, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” over the benefit of maintaining meaningful relationships. Specifically, it is necessary to determine whether the risk of harm to the child, in having access to a parent, outweighs the possible benefits to them from having that access.
As succinctly stated by former Justice Chisholm, writing extra-judicially, determining whether an unacceptable risk in terms of ss 60CC(2)(b) of the Act exists involves “a prediction of the future, based on findings of fact. The confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction.”[6]
A useful summary of the relevant law in determining whether an unacceptable risk exists is set out in a decision of Judge Stone, President of the Children’s Court of New South Wales, in the matter of The Secretary, Department of Family and Community Services and the Harper Children [2016] NSWChC 3 at [30]-[41], as follows:
[30] Central to the determination of the issues in the present case is the application of the unacceptable risk of harm test formulated in the High Court decision in M v M [1988] HCA 68.
…
[32] The particular factual scenario in M v M involved allegations of sexual harm to the children the subject of the proceedings. It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse.
[33] It can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: DFaCS (NSW) and the Colt Children [2013] NSWChC 5 at [146] - [149].
[34] The High Court observed that efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations, and the courts are striving for a greater degree of definition than the subject is capable of yielding:
[25] “The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B v B (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
[35] The concept of the balancing exercise is further addressed as follows:
[20] “The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.”
[36] Importantly in the present context, the High Court also observed in M v M that reaching a positive finding that abuse has occurred is not always possible, nor is it always desirable, noting that there may be strong practical family reasons to refrain from making a finding:
[23] “No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.”
[37] The submissions then refer to a paper prepared by the Hon John Fogarty AM entitled “Unacceptable Risk: A Return to Basics”. In that paper, he outlined a 7 point summary of the principles emerging from M v M. That summary was endorsed by the Full Court of the Family Court of Australia in Johnson v Page [2007] FamCA 1235 (at [68] and [71]). The summary is as follows:
(i) The decisive issue is and always remains the best interests of that child. All other issues are subservient.
(ii) 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.
(iii) Where past abuse of a child is alleged it is usually neither necessary nor desirable to reach a definitive conclusion on that issue. Where, however, that is done the Briginshaw civil standard of proof applies.
(iv) The circumstance, if it be so, that the allegation of past abuse is not proved in accordance with Briginshaw, does not impede reliance upon those circumstances in determining whether there is an unacceptable risk.
(v) The concentration in these cases should normally be upon the question whether there is an unacceptable risk to the child.
(vi) The onus of proof in reaching that conclusion is the ordinary civil standard.
(vii) But the components which go to make up that conclusion need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard.
[38] The written submissions refer also to a decision by the majority of the Full Court of the Family Court in Napier v Hepburn [2006] FamCA 1316 “where it was held that failure to reject an allegation as groundless does not mean that inevitably there is an unacceptable risk of harm”.
[39] In Napier v Hepburn the strenuous denials by the impugned parent were implicitly rejected but no reasons were given for rejection of those denials. The court there also considered and extracted with approval part of Justice Fogarty’s dissenting judgment in N v S (1996) FLC 92-655 at 82,713 who was the author of the paper referred to with approval in Johnson v Page [2007] FamCA 1235:
[84] “There remained an obligation on the trial judge to not only evaluate the harm that might befall the child if there is a future act of abuse, but to also evaluate the prospect of such an act occurring. This is not a search for a solution that will eliminate any prospect of serious harm. It is a search to balance the harm that will follow if the risk is not minimised and the harm that will follow if a normal healthy relationship between parent and child is not allowed to prosper.”
[40] It was submitted that the following extract from the judgment by his Honour Justice Fogarty referred to and extracted with approval in Napier v Hepburn reflects an appropriate method to assist the determination of whether there exists an unacceptable risk:
[56] “In answering the unacceptable risk question the court must undertake a qualitative analysis. For instance, that determination cannot appropriately be made through a process which counts the number of considerations which favour access, and those which militate against access, and then asks on which side the balance falls. Rather, the essential weight must be attached to the magnitude of the harm to which the risk relates. …
[41] Counsel referred to a decision of the Full Court of the Family Court in Blinko and Blinko [2015] FamCAFC 146 where the appropriate approach in dealing with issues of risk and the obligation on the Court to consider whether the imposition of conditions or other safeguards would ameliorate those risks was discussed, and said that as part of assessing risk the Court should consider possible measures to ameliorate that risk:
[27] “A consideration of risk, and factors which impact upon or ameliorate the risk, will in most cases be inextricably linked. That is because “[t]he object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child”: see Hon John Fogarty AM “Unacceptable Risk – A Return to Basics” (2006) 20 Australian Journal of Family Law 249 at 261”.
In summary, the concept of “unacceptable risk”, as referred to in M and M (1988) FLC 91-979 (“M and M”), is to be determined within the framework of resolving “the wider issue” namely what is in the best interests of the child. The existence of an “unacceptable risk” is subservient to that determination: see M and M (supra) at 77,081; B and B (supra) at 79,778.
As noted by the Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39], a determination that there is a risk of abuse may be made “on the basis of evidence which falls short of that required for a finding that abuse has occurred.” Essentially, the task involves assessing the case at hand through a risk matrix as referred to in Deiter v Deiter [2011] FamCAFC 82 at [61], where the Full Court said:
Risk assessment comprises two elements — the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.
For reasons which I set out below, I am not satisfied that the child is at risk of physical and/or psychological harm in the care of the mother. I am, however, of the view that the child is at the risk of significant psychological harm in spending unsupervised time with the father and the father’s current partner, Ms NN.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the children’s best interests. These considerations are as follows:
Sub-section (3)(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.
Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.
Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
Sub-section (3)(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.
Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant.
Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
Sub-section (3)(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; and
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
Consideration
Parental responsibility
At paragraph 179 of her report, Ms OO expressed the following opinion:
The co-parenting relationship is of limited effectiveness, and both parents acknowledge there is little communication. [The father] had nothing positive to say about [the mother], other than she "cooks well" and then she withholds good food from D, and, that she can communicate well "when she wants to".
I accept and agree with that assessment by Ms OO. The negative views that the father and Ms NN have of the mother were repeated by them when giving oral evidence.
Comparatively, Ms OO notes that the mother expressed a desire to “co-parent with the father and Ms NN in an effective way,” if that is possible. The mother’s actions in recently sending a video of D enjoying her birthday at her home to the father is consistent with that statement the mother made to Ms OO.
Despite the expressed desire of the mother to co-parent with the father and Ms NN, I am satisfied that it is not possible for the parties to have joint parental responsibility. The history of litigation and acrimony between the parties is such that, in my view, it is not possible that the parties could cooperate in an appropriately child focused manner to exercise joint parental responsibility as required by ss 65DAC(2) and (3) of the Act .
A practical example of that failure is the father’s criticism of the mothers’ attempts to obtain appropriate dental care for the child and also the mother accepting medical advice to place the child on an antibiotic at a time that she had an infection.
The first Order of the Orders made by Judge Neville on 15 June 2015 was for the mother to have sole responsibility of D and her son C. Despite this, the father took D to subsequent dental appointments and medical appointments without first obtaining the consent of the mother. Regrettably, the father applied advice that he allegedly obtained in the course of those appointments to criticise the mother for providing what he described as inadequate dental care to the child and also that she had inappropriately administered an antibiotic to the child. I describe that conduct in greater detail below.
In a similar context, I have found the imputations made by the father and Ms NN, about the mother’s inability to ensure that D has appropriate personal hygiene and dresses neatly and appropriately, to be unsubstantiated.
In summary, the history between the parties, including those examples, satisfies me that the mother would be subject to ongoing criticism and undermining of decisions that she makes in an endeavour to discharge the important obligation of exercising parental responsibility.
At paragraph 195 of her report, Ms OO expressed the following opinion:
Given the lack of an effective co-parenting relationship, and the allegations of family violence, the Court may wish to consider an Order whereby sole parental responsibility should go to the parent with whom D primarily lives.
In the circumstances of the poor relationship between the parents, which I have outlined, I am satisfied that an order for sole parental responsibility should be made. As orders will be made for D to live with the mother, I will therefore make orders for the mother to have sole parental responsibility in respect to D.
Meaningful relationship
In M and M (supra) at 77,080, the Full Bench of the High Court said:
In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at 450, 458, 462, 463–4; 69 ALR 647.
I accept that D currently has a meaningful relationship with both parents. Ms NN attested that D does not call Ms Khalid “mother” and that the child has told Ms NN that she hates her own mother. Even if words to that effect were said by the child to Ms NN, I do not accept that to be the case in reality. The reality is, in my view, reflected in a text message the mother received from the child, during the course of the proceedings, which read “Ma, how much longer. I hope you are okay. I love you.”[7]
Ms OO, the Family Report writer, expressed concern in respect to the father’s inability to facilitate a positive relationship between D and the mother. I am of the opinion that Ms OO’ concern is justified and that the father does not have such a capacity. In that respect, I note at paragraph 180 of her report, Ms OO states:
[The father] stated, "There will be no drawbacks" for D if she does not spend time with her mother. This comment suggests that [the father] has limited insight into the importance of D's attachment to her mother, and maintaining an ongoing relationship with her. Again, it also raises concerns as to whether [the father] could adequately facilitate the relationship between D and her mother.
The orders sought by the mother will, clearly, adversely impact upon the child’s ability to have a meaningful relationship with the father and her siblings born to the father and his current partner. The orders should cause such an outcome only in circumstances where the risk to the child outweighs the benefit of the child having an ongoing meaningful relationship with a parent and, also, her siblings. For reasons which I have set out below in examining the issue of risk, I am satisfied that this is such a case.
Nevertheless, consistent with the recommendations of Ms OO, I will make orders facilitating the child spending recognition time with the father. Ms OO explained the purpose and intent of such an order at paragraph 194 of her report as follows:
This allows a child to maintain an understanding of their identity and cultural background to maintain a sufficient connection so that in the future, the child can re-establish a meaningful relationship if desired. If an Order for recognition time is made by the Court, then, professional supervision of this time, on several occasions each year, is considered appropriate.
The issue of risk
As previously noted, the task before the Court is essentially to determine a balance between the risk of detriment to the child from abuse, and the possibility of benefit to the child from parental access. Specifically, it is necessary to determine whether the risk of harm to the child in having access to a parent outweighs the possible benefits to them from having that access.
Paraphrasing and distilling from the decisions to which I have earlier referred, the task of determining whether an unacceptable risk exists is assisted by having regard to the following principles:
· In devising tests to determine whether unacceptable risk exists, the courts have endeavoured, in their efforts to protect the child's paramount interests, to “achieve a balance between the risk of detriment to the child from [abuse] and the possibility of benefit to the child from parental access'': M and M (supra) at 77,081; B and B (supra) at 79,778.
· It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” requires assessments of risk of future physical and emotional harm: A v A (1998) FLC 92-800 at 84,996; M and M (supra) at 77,081.
· It can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]-[149].
· Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to balance the potential seriousness of the harm against the probability of its occurrence.[8] That is, there is an obligation on a trial judge to evaluate, not only the extent and nature of the harm that might befall the child if there is a future act of abuse, but also to evaluate the prospect or probability of an act occurring that would cause such harm to the child: N v S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier and Hepburn (2006) FLC 93-303 at 81,114 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]-[96].
· The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: Johnson and Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM titled “Unacceptable Risk: A Return to Basics.”[9]
· While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction.”[10]
· Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: Blinko & Blinko [2015] FamCAFC 146 at 83.
Risk in the mother’s care
As noted above, the father asserts that the child has been the victim of family violence and psychological abuse at the hands of her mother. At paragraph 176 of her report, Ms OO opines that “there is no information available to the writer that suggests D is at risk of neglect or abuse in [the mother’s] care.” For reasons which I have set out, I share that view.
The evidence adduced by the father to support his allegations against the mother, that she has committed acts of family violence against D, is substantially based on hearsay accounts of reports D has allegedly made and reports from D herself.
In that respect, it is significant to note the observation of Ms OO, as expressed at paragraph 169 of her report, as follows:
D's allegations made during the report interviews, about her mother hitting her, had a rote quality and her affect at the time did not reflect the content of her narrative. For example, there was no apparent fear, sadness or anger in her reporting of those incidents, and the reports themselves lacked detail and depth.
Similarly, insofar as D stated that she has also been the subject of physical violence by her brother, C, and, specifically, that he hit her with her belt, Ms OO noted, at paragraph 171 of her report, that:
C was observed to be considerate toward D, and patient with her, despite her persistent attempts to disrupt his games with his mother.
For reasons which I will subsequently explain, the father has failed to satisfy me that such violence and abuse has been perpetrated by the mother or, for that matter, by C.
In arriving at that opinion, I am fortified that professional investigators, attached with the CYPS, have similarly found the father’s allegations of emotional and physical abuse by the mother to be unsubstantiated.
Risk in the father’s care
Comparatively, the mother alleges that the father has, for many years, coached the child to make false allegations that her mother physically abuses her. As a result of the allegations that have been made, the child has been subject to numerous interviews by Police, child protection authorities and medical practitioners. The mother contends that the father’s conduct in coaching the child amounts to psychological abuse of the child. The mother’s contentions are consistent with findings made in appraisals conducted by CYPS.
CYPS appraisals
In the CYPS appraisal, dated 5 November 2018 (marked ‘Exhibit 3M’ in the proceedings), it was noted that there had been 36 child protection reports and six (6) investigations in respect of D since January 2014. There have also been additional reports made to the New South Wales child protection authorities during the nine (9) month period that the mother lived in the Woman’s Refuge in Suburb FF. The reports allege that the mother engages in physical abuse of D. However, none of the allegations were found to be substantiated by those investigators. The November CYPS appraisal recorded that the CYPS considered the mother to be both willing and able to protect D from abuse and/or neglect despite the impediments presented by the ongoing Family Law proceedings.
The CYPS appraisal completed in February 2018 concluded:
“It appears that there is reasonable belief that [the father] has on multiple occasions emotionally manipulated D to make false allegations against her mother in order to either strengthen [the father’s] argument within the [family law court] arena and/or to antagonise the mother. In either case, such behaviour can and does have a detrimental impact on the child's sense of safety and security, especially when they are encouraged to make allegations against their primary care giver that they genuinely feel safe with, however are fearful of the consequences from the other parent (father) including the thought of failure and/or loyalty.
It is highly concerning that the child has been encouraged to make what is considered to be false allegations against her mother, this may impact on her ability to emotionally separate fact from fiction which ultimately may lead to her genuinely developing unnecessary fear whilst in her mother's care. In addition, other domains of the child's life can be severely impacted including health, education and age appropriate development".[11]
Despite the fact that none of the father’s allegations against the mother have been found to be substantiated by CYPS, the father continues to assert that the mother has and continues to physically abuse D. It is of great concern that the father fails to appreciate the detrimental impact that his conduct is having upon the child even where his conduct is a subject of adverse comment by experienced professionals.
In that respect, documentation produced by the CYPS identifies evidence to support the findings that the child has been emotionally abused by the father and that there is a risk of significant “emotional abuse” to the child because of the father’s “emotional manipulative behaviours, lack of insight in relation to the genuine safety and wellbeing of D”, and this has occurred for a number of years. As noted by the Family Report writer at paragraph 85 of her report:
CYPS reported that several agencies and other professionals believe that [the father] is manipulating D to make false allegations about [the mother], and that they have "significant and ongoing concerns", in relation to this situation.
Also in the CYPS appraisal dated 5 November 2018, the appraising worker noted the following “Child protection report assessment”:
“Reporting history in respect of [the child] since January 2014. Vast majority of concerns are in relation to allegations of physical and emotional abuse. [The child] has consistently alleged that she is subject to physical abuse at the hands of her mother. However, recent reports from mandated Reporters have indicated that no visible marks/bruising have been observed. Prior reports and subsequent assessment appears to indicate that other professionals including the Police hold the view that [the child] is more likely to be experiencing emotional abuse and that the father may be “coaching” his daughter for his own ends in terms of [the family law court] proceedings.”
The CYPS appraisal further notes:
Physical abuse allegations for D have previously been investigated by both SACAT and CYPS, an internal review, and the information has also been reviewed through the [family law court] jurisdiction. Despite this, there has been no concrete evidence to support the alleged abuse by [the mother]. Rather, from previous CYPS involvement it would appear that [the father] has manipulated D and the mandated reporting system into alleging that [the mother] is physically abusive and is unable to meet her needs.
A review of both D and C's child protection history indicates that the vast majority of notifications have been made by father … or by other professionals (mandated reporters) through [the father] or D. It has also been acknowledged that father … appears to be maliciously reporting to gain traction in custody proceedings of D.
The CYPS appraisal further notes:
In total there have been 36 reports received in respect of D and only 18 received in respect of her brother C, even though they both have the same environment in their mother's care and would subsequently be exposed to the same risks. Similarly, the vast majority of reports alleging physical abuse appear to have been made by the father … either directly or indirectly through mandated reporters, and thus significant concerns have been raised previously that [the father] may be maliciously reporting.
In September 2016, [the father] was substantiated as the Person Believed Responsible (PBR) for putting D at significant risk of emotional abuse causing harm. In February 2018, [the father] was also substantiated as the PBR for emotional abuse causing significant harm and putting D at significant risk of emotional abuse causing harm.
The CYPS appraisal also notes that:
During conversations with [the father], he has made it clear through his statements that he has no regard and "doesn't care" about the processes or legislation of the [family law court] or CYPS. [The father] also appears to have limited insight into the potential impacts of his behaviour on D. During a phone conversation with [the father] on 04/12/2018, the appraising worker raised concerns about [the father’s] behaviour on D. The appraising worker also advised that there was no evidence to support abuse by [the mother], to which [the father] responded, "regardless of evidence you have I don't really care" and "I really don't care about your evidences" and "I believe 100% that this is happening".
Consistent with those responses provided by the father, the CYPS appraisal identified factors that increased or heightened the probability of abuse occurring by the father, as including:
·Prior substantiated reports of emotional abuse for [the father] in 2016 and 2018, which demonstrates a prior pattern of behaviour, and there appears to have been no change in his behaviour/opinions;
·The presence of complicating factors i.e. multiple reports over time, multiple harm types etc.;
·[The father’s] belief about the correctness of his opinions about the mother being abusive;
·The father shows no insight into the concerns for his behaviour, as well as disregard for [the family law court] and CYPS processes and legislation
The conclusion of the CYPS appraisal is summarised in the following paragraphs:
From information and observations obtained during the appraisal, with consideration given to the family's history and previous substantiations, there appears to be an ongoing level of grooming and manipulation of D by [the father]. Moreover, it also appears that the ongoing custody dispute between both parents is unlikely to ease or cease anytime soon, and is it is therefore likely that D will continue to be exposed to these proceedings.
…
It is important to note that there have been significant concerns raised by CYPS, SACAT, the [family law court], and other professionals that [the father] may be coaching and grooming D. There have been ongoing concerns that [the father] has also manipulated the mandated reporting system both directly and indirectly for reports to be made to CYPS. As a result, in the current [family law court] Order, [the father] is restrained from causing D to see medical professionals (unless in an emergency), or Police or welfare officers without first advising an Independent Child Lawyer. [The father] has also been refrained by the court from taking D to a psychologist without the consent of [the mother] or an order of the court.
Despite these restrictions, [the father] appears to continue to try and manipulate the mandated reporting system through D's school and appears to either disregard or ignore any recommendations of the [family law court] or CYPS around D's wellbeing.
It is the appraising worker's opinion that the statements and behaviours of [the father] suggest a power and control dynamic commonly seen in family violence relationships, and [the father’s] attempts to undermine [the mother’s] parenting capacity and relationship with D appear to be unrelenting. It is also the appraising worker's opinion that [the father’s] behaviour appears to be driven by a desire to strengthen his argument within the [family law court] arena and to have full custody of D.
Pursuant to s 69ZT(1)(a) of the Act, subject to weight, the Court is entitled to have regard to the opinions expressed in those reports of the CYPS to which I have referred. In this matter, I do give weight to those assessments because, for reasons which I explain, the opinions and assessments expressed in those reports are consistent with the predominance of evidence presented in this case concerning the conduct of the father towards the child.
The father’s deliberately manipulative conduct
Firstly, I am satisfied that the father has engaged in deliberately manipulative conduct with a view to influencing D to have a negative view of her mother and, indeed, to falsely report that her mother has physically and emotionally abused her. In giving oral evidence, the father acknowledged that D could be coached. The father acknowledged that he had argued with the initial Family Report writer, Ms VV, demanding that interviews which she conducted for the purpose of preparing her report dated 14 December 2014 should be deferred because “his wife could have coached D during the last few days.”[12] The evidence was that in the few days immediately prior to D’s interview with Ms VV, the child had been in the wife’s care. In that respect, the father contended that, in the past, D had been “coached” by her mother to not want to spend time with the father at a contact centre. The father acknowledged that it was possible the child could be coached and, while he accused the mother of coaching the child, he denied doing so himself. [13]
In terms of coaching, I note the Family Report writer, Ms OO, opined that the negative comments D made about her brother C, to the effect that he is “not a good boy” and that if he were to live with the father he would become a “good boy,” suggests that D has been “the subject of adult narrative in relation to a positive change for C if he too, were to live with [the father].”
I further note the observation of Ms OO that:
Reports of both D and her father, of abuse in [the mother’s] care, are similar in narrative. D's views of her brother and mother were mostly negative, whereas she was overwhelmingly positive in her description of her father and Ms NN. This type of dichotomous thinking, is a form of cognitive distortion, and is common in children who have been negatively influenced by one parent against the other.
Further, in terms of the father’s propensity to engage in manipulative conduct, there is a concerning coincidence of a visit that the father and Ms NN made to D’s school on 21 February 2019. That was the day immediately prior to when the Family Report interviews were to occur with the Family Report writer, the mother, D and her brother. The father acknowledged that he did not seek authorisation from the school before visiting D and contends that the reason for the visit was not to see D but “to give [D] something.” No explanation was provided as to why the particular item or items were not left at the school administrative office rather than both the father and Ms NN visiting D on the school ground without first obtaining authorisation to do so.
There is a further coincidence in respect to the father and Ms NN arriving at the Canberra Registry of the Court at the time D was to be interviewed by the Family Report writer together with her mother and her brother. In that respect, at paragraph 59 of her report, Ms OO records:
The writer observed on the day of the Report interviews with D and [the mother], that [the father] arrived at the Registry, despite D being in [the mother’s] care at the time. The writer informed [the father] that he was not required at all during that day. Nevertheless, later in the day, before D's interview, he was again observed sitting in the waiting area of the Registry with his wife, and child and D, whilst [the mother] was sitting separately with C. [The father’s] explanation for his attendance, was that the writer, that morning, requested to interview his young child. The writer denies this was requested of [the father].
In giving oral evidence, Ms OO confirmed the accuracy of her records set out in that paragraph. Ms OO presented as highly professional and a credible witness and I accept the accuracy of her evidence and the record she made at paragraph 59 of her report.
The evidence of Ms OO is consistent with the fact that the father and his current wife had already participated in interviews with Ms OO and D at the Canberra Registry of the Court on 29 January 2019. There was no reason for the father to be in attendance when the interviews were to subsequently occur between Ms OO and the mother, D and her brother C on 22 February 2019.
At paragraph 102 of his Affidavit, the father asserts that he was in attendance because correspondence he had received from the Court told him that “children are required.” In those circumstances, the father said that he anticipated that he was required to attend with QQ, his child with Ms NN. At that time, QQ was less than two (2) years old. The father was aware that Ms OO had already had the opportunity to observe D interact with QQ when he attended the interviews with Ms OO on 29 January 2019. This is confirmed on page 3 of Ms OO’ report.
It is self-evident that Ms OO would not have been able to interview a child of QQ’s age. In circumstances where Ms OO had already observed the child’s interactions with QQ, it is implausible that the father genuinely believed that he was expected to attend the interviews on 22 February 2019 so that Ms OO could again observe D’s interactions with her stepsister when Ms OO had already observed that interaction some three (3) weeks before.
Moreover, the letter sent to all the parties, dated 4 February 2019 (marked ‘Exhibit 24ICL’ in the proceedings), advising of the appointment for the mother and the children to be interviewed by the Family Consultant, stated that the subject children were D and C.
In summary, on this issue, I accept the evidence of Ms OO that she did not request the father to be present on the day of her interview with D, the mother and C. In the absence of the father having a plausible reason for his attendance, I find that the more probable explanation is that the father attended, with his current wife, for the purpose of influencing D’s interaction with her mother and D’s communication with Ms OO.
Further, in the context of the surrounding evidence to which I have referred, in the absence of a satisfactory explanation as to why the father visited D on the school playground rather than leaving the particular item that the father states he wished to give the child with the school’s administration office, I also find that the more likely explanation for the father’s visitation of the child at her school on 21 February 2019 was for the purpose of influencing her communications at the interviews with Ms OO on the following day.
In considering the potential impact of the father’s manipulative conduct on D, I note that D was worried about the mother recently sending the father a video of her enjoying her birthday party at the mother’s home. In that respect, I found the mother to be a credible witness in these proceedings and I accept the mother’s evidence, that the child requested the mother not to send the video to the father, as set out in a text message marked ‘Exhibit 20M’ in the proceedings.
In terms of the child’s concern about offending her father by showing displays of affection to the mother, I similarly accept the mother’s evidence as set out in paragraphs 39 and 40 of her Affidavit, as follows:
39. On or around 4 November 2014 and at approximately 8.30pm, I received a telephone call from Dr UU and I had a three-way conversation with her and D. Initially D was reluctant to speak to me until Dr UU said to her words to the effect "It is ok to speak to your mum. We won’t tell your dad”
40. D and I then had a happy and animated conversation. At the end of the conversation D said words to the effect "Kisses to you and C, please don't tell daddy I spoke to my mum and kissed her."
In a similar context, regarding the child’s concerns in respect to the father perceiving that she has a good relationship with the mother, I accept the mother’s evidence as set out in paragraphs 41 and 42 of her Affidavit, as follows:
41. On or around 10 November 2014, I attended the WW Pre-School and spoke with the principal, Mr XX. I asked permission to speak with D while she was playing in the school yard and Mr XX agreed.
42. I walked to where D was playing and said to her words to the effect of "Hello D, it has been ages since I saw you." D was initially very happy to see me but became worried and said to me in the ZZ language words to the effect "You should not have come here, dad will be very angry with me for speaking to you".
At paragraph 34 of his Affidavit, the father stated that he called the “Child Protection Agency” who advised him to contact Police. The father stated that he acted in accordance with that advice and that he duly notified the Police. The father stated that, after the Police investigated the allegations, they took no further action “as there was no ‘evidence’.”
At paragraph 35 of his Affidavit, the father stated that, on 15 October 2017, he took D to a doctor in HH Medical Centre, “as she was snoring badly at night and as she said that her nose was bleeding [he] thought this needed to be taken care of urgently.”
At paragraph 36 of his Affidavit, the father attests that:
36. The Doctor checked her nose and D told him about the abuse by the [mother]. While speaking, D got very upset and started to scream that her tummy was hurting, and she started to cry. I tried to comfort her, and she felt better. I then took D out of the doctor's and fed some happy food.
37. The Doctor told me that this can happen when a child is psychologically distressed and physiological symptoms can occur. I have seen her having tummy ache whenever I took her to the [mother’s] care or sometimes to school. The Doctor gave his professional recommendation that this is unsafe for D to be returned to the [mother] and she stays with the Father, where she feels safe.[35]
At paragraph 39 of his Affidavit, the father contends that, as a result of the advice that he received from the doctor, he did not take the child to school on 16 October 2017. He stated that he did not do so because his actions in doing so would have resulted in D being returned to the care of the mother.
Consideration of the father’s allegations that the mother has physically assaulted the child
The evidence provided by the father to substantiate the allegations that the mother has physically and emotionally abused D is weak. It is substantially based on the hearsay accounts provided by D, a young child.
It is significant that allegations made by the father are, on occasions, based on his acceptance of one version of events provided by D in circumstances where she has provided different accounts of the alleged event to the mother.
I have earlier set out, in addressing the issue of risk, why I do not accept the evidence of the father and Ms NN that the child sustained an injury in mid-January 2017 as result of her mother allegedly striking her on her back with a wooden spoon.
At paragraph 13 of the father’s Affidavit, he stated that D reported to him that the mother had hit D’s head on the wall of the shower because D did not want to take a shower. D refers to the shower incident in the diary, as referred to earlier, where she states that “my step mum hit me because I was not showering but I was about to go but instead I got hit.” The child makes no mention of what one would consider to be a significant event, namely, her head being pushed into the wall of the shower. Significantly, the CYPS appraisal report, marked ‘Exhibit 18M’ in the proceedings, records D reporting that the mother’s actions occurred because she was taking too long the shower. In light of those conflicting versions, I do not accept that the incident occurred as alleged by the father.
In respect to the incident which the father alleges occurred on 8 September 2014, as referred to in paragraph 22 of his Affidavit, it is significant to note the context in which the allegation has been made. On 8 September 2014, the father refused to return D to the mother’s care and, instead, took D to Dr EEE. No injuries were noted but the child advised the doctor that her mother had struck her with a television remote. On 25 September 2014, 17 days after the alleged event, the father took the child to see Dr UU. At that appointment, the child told Dr UU that it was, in fact, her brother who struck her with the remote.[36] Again, in light of those different versions, I do not accept that the incident occurred as alleged by the father.
The father relies upon annexure E to his Affidavit to assert that the mother hit the child with sandals and scratched the child’s face. Annexure E is an undated email from the father’s sister which, following a greeting, reads:
I remember when D came the red part beside her eyes looked worse. But because I preferred to have lunch outside with her so I didn’t take pictures immediately.
By the evening after we spent a whole day outside having fun at the park she told me her biological mother hit her with sandals and scratched the face. She also told me that her mother beats her and her brother with sandals pretty much a lot and sometimes her brother even bleeds.
I really felt bad for her. Hope she doesn’t get beaten anymore.
I have, by separate ex tempore judgment, given reasons why I declined to accede to the father’s request to call evidence from his sister to expand upon evidence that he had set out in his Affidavit, including by way of annexures to his Affidavit. While hearsay evidence is admissible in parenting proceedings, it is subject to weight. In circumstances where the email that is annexure E to the father’s Affidavit is undated, it is not possible to determine when the alleged assault on the child by the mother occurred. Further, no details are given of the alleged incident or incidents. To corroborate the sister’s evidence, the father attaches as annexure D to his Affidavit, which is a photograph of D’s chin purporting to show some injury. No particulars are provided as to how that injury occurred.
It is clear that the sister did not take D to any medical appointment to document the injury and, during the course of cross-examination, the father stated that he did not obtain any medical treatment in respect to the alleged injury because, by the time he took delivery of the child from his sister, the cut was gone.
As noted above, the father further alleges that, on 9 October 2017, the mother hit D on the face, causing her nose to bleed. This incident, together with concerns the father states that he had that the mother allowed the child to walk to school on 10 October 2017, resulted in the father retaining the child for a further occasion on 16 October 2017.
The information that the father relied upon to conclude that the mother permitted the child to walk to school on 10 October 2017 was an email sent by Ms JJJ.[37] Ms JJJ is a teacher at the child’s school. At paragraph 28 of his Affidavit, the father contends:
On 10 October 2017, I received an email from Ms JJJ, who not only was a best friend of the [the mother] but also a Senior Teacher of School BBB. This email is very concerning for any parent but also showed that this senior teacher was very concerned. The contents of the email were: "I incidentally met D at front office at 8:45. She was very worried that she is late to school. I calmed her down and told her that she is ok. She was sweating and bothered. I asked her why, she replied and said that her mother got angry at her and refused to drop her and her brother off to school so they walked to school. I told her that this is a long walk. I sat her down, tied her shoe laces, took her jacket off and got her to drink water. She said her and her brother usually walk home and [the mother] picks them up half way. I asked her the reason why her mother refused to drop her off today and she said she didn't know, her mother wakes up and if she doesn't feel like it, she makes them walk to school." [38]
During the course of cross-examination, the father acknowledged that Ms JJJ is a friend of his. The significance of the email sent by Ms JJJ to the father is, however, that she does not record observing any bruising about the child’s face, nor does she report any complaint made by the child that her mother had struck her on the day before. I, therefore, do not accept that the mother struck the child on 9 October 2017 as alleged by the father.
Insofar as the father relies on the email of Ms JJJ to contend neglect on the part of the mother, the mother freely acknowledged that, on occasions, she acceded to the children’s request to walk to school together. I accept that is the case and I do not find that the mother’s actions in so permitting the children to walk to school together constituted neglect or child abuse.
Significantly, in her interview with Ms OO, D gave a far less dramatic account of alleged acts of family violence on the part of the mother. At paragraph 95 of her report, Ms OO described that, during her interview with D, she said that, “on occasions”, the mother hit her, including, most recently, in December 2018. When asked to provide further details about the incident, D advised Ms OO that she could not remember exactly but “she thought her mother hit her with her hand upon D’s shoulder” after the mother had read D’s diary which has been tendered in these proceedings.
It is to be noted that Ms OO’ first interview with D occurred on 29 January 2019 and the second interview occurred on 22 February 2019. That is, the alleged December 2018 incident had occurred a little over a month prior to the interview. In circumstances where the child was unable to give a more accurate description of the event which she alleged occurred, I place little weight on that aspect of the child’s evidence.
In considering the father’s allegations that the mother has physically assaulted D, I have noted that, at paragraph 169 of her report, Ms OO opines:
D's allegations made during the report interviews, about her mother hitting her, had a rote quality and her affect at the time did not reflect the content of her narrative. For example, there was no apparent fear, sadness or anger in her reporting of those incidents, and the reports themselves lacked detail and depth.
Similarly, insofar as D stated that she has also been the subject of physical violence by her brother C, and, specifically, that he hit her with her belt, Ms OO, at paragraph 171of her report, noted:
Although there was considerable bickering between the siblings during the observation, C was observed to be considerate toward D, and patient with her, despite her persistent attempts to disrupt his games with his mother. D did not appear to be afraid of her brother or to dislike him and she engaged positively with him for short periods. The inconsistency in D's views suggests that they may not reflect her lived experience, which is likely to be, at times, both positive and negative.
The reports provided by D that she has been physically and emotionally abused is also inconsistent with her conduct in the interviews with Ms OO. In that respect, at paragraph 184 of her report, Ms OO states:
D's behaviour during the observation appeared inappropriate, disproportionally dramatic and somewhat dysregulated. [The mother] reported that D's behaviour on the day is a genuine reflection of her general behaviour at home This may suggest that she feels secure in her relationship with her mother, and able to "be herself', not fearing that she will be harshly treated.
It is also relevant to note that the CYPS appraisal dated 5 November 2018 doubted the veracity of D’s accounts of being subject to violence or abuse in the care of her mother. In that respect it was noted:
When interviewed, D will freely and immediately articulate that her mother hits/abuses her often, but she has been unable to corroborate the allegations with specific details. When D was able to provide more specific information, it was observed that she provided conflicting information. For example, when interviewed about the alleged incident when she was being hit by her mother in the shower, she initially said that she was in the shower when her mother hit her and then later provided information that she wasn't in the shower.
D has also made allegations to the appraising worker that her mother pulled her hair one morning, further information gathered indicated that the mother Ms Khalid was brushing D's hair. D has also made allegations that her mother has called her fat; however, other information received suggests that the mother has been concerned about D's unhealthy habits and weight.
D's school have also acknowledged that D will disclose physical abuse by her mother but will often repeat the same story with different details, and also appears to confuse incidents. Overall the school report that the disclosures have not been consistent. D's school have also acknowledged that there appears to be a pattern for D's recent disclosures that appear to coincide with the family returning to [family law court] in early 2019.
It is also important to note that when D has disclosed physical abuse to the appraising worker, she used or referred to adult words and concepts, which raised concerns that she was using words that she didn't fully understand or that weren't her own. For example, when asked about whether either of her parents spoke about the [family law court] and what happened at [family law court], D indicated that her father did talk about [family law court], but her mother didn't. D also spoke about her wanting the [family law court] to believe her, as well as spoke about the [family law court] needing proof that her mother hits her. D has also referred to the information needing to come from the child and not an adult.
D’s absence of fear of her mother is also inconsistent with the contentions that the mother has physically and/or emotionally abused D.
Having regard to the totality of evidence to which I have referred, I am not satisfied that the child has been physically assaulted by the mother or her brother as alleged by the father.
Consideration of the father’s allegations that the mother has psychologically abused the child
At paragraph 40 of his Affidavit, the father contends that:
During the Christmas and new years holidays end of 2018, while D was with us, she wanted to have her hair braided. My wife Ms NN bought all the products and braided her hair, which took really long. But Ms NN and D were patient and they loved the hair. When D was returned to the applicant, she sent vile messages.[39]
The Family Report writer, Ms OO, records that the father advised her that, after this incident, child protection caseworkers conducted home visits to both his home and the mother’s home and interviewed D at school. In his interview with Ms OO, the father contended that both the mother and C had told D that she looked “black” and looked like “an African”. Significantly, no mention is made of the use of any such terms at paragraph 40 of his Affidavit, where he describes the hair braiding incident that gave rise to his complaint to CYPS.
At paragraph 71 through to 73 of his Affidavit, the father particularised what he submitted was “psychological abuse of D.” The specific allegations are as follows:
·That in 2016 the mother told D that she looked “fat and black” in a photo that had been taken of her by a professional photographer.
·That before the birth of QQ, D told the father that the mother said to her “your father will have a beautiful white baby daughter with blonde hair and blue eyes. He will not love you anymore. He will buy things only for her but not for you.”
·That after the birth of QQ the mother said to the child “don’t carry QQ as they will make you a slave.”
The mother denies the father’s allegations of making racially derogatory comments to or about D who she described as beautiful and “absolutely gorgeous.” I accept the mother’s evidence. It is implausible that either the mother or C would speak in derogatory terms about the child’s complexion in circumstances where they are of a similar complexion.
The father’s attempt to give credibility to his contention that the mother used derogatory terms about D’s complexion fell on barren ground. In that respect, in his oral submissions, the father submitted:
I can show you some photos or submit photos and D is probably a little bit darker at this moment because of the sun and things like that, but that’s probably why she may have said that.[40]
No such photos were tendered by the father nor, if they had been, would such photographs have been admitted into the evidence for the purpose of establishing the contention that the father advanced. The contention was, with respect, fanciful.
Significantly, as noted above, the relevant CYPS appraisal workers who interviewed D were not satisfied that the child had been the subject of abuse or ill-treatment as alleged by the father.
QQ was born in 2017. D did not turn seven (7) until later that year. It is certainly plausible that a child of that age would have sought reassurance from the father and his new partner that they would continue to love her after QQ was born. However, it is implausible that the mother, who, is herself, of the same complexion, would have suggested that the father, who also has the same complexion, would favour a baby with paler skin or different coloured eyes than that of D.
The father’s evidence that the child relayed to him that the mother had told her not to carry QQ around because the father and Ms NN would make her, at that stage, a child of approximately six (6) years, their slave is also inherently implausible. In that context, I note that, at paragraph 131 of her Affidavit, the mother denied making any such comments and confirmed her view that her daughter, D, is a beautiful child and that she is “sure that [QQ] is also a beautiful child, as all children are.” The mother further attested that she wished for D “to have a good relationship with QQ” and the father has not presented any plausible evidence to establish that the mother is of a contrary view or that she has made comments with a view to damaging D’s relationship with her sister.
I, therefore, do not accept the father’s allegations that the mother has spoken in derogatory terms to her daughter, about her complexion or otherwise, or that the mother has psychologically abused the child.
Consideration of the father’s allegations that the mother has committed violence against himself
At paragraph 14 of his Affidavit, the father alleges that:
In April 2013, the [mother] attacked [him] unprovoked and caused injuries on [his] face and body.
The father relies upon a photo of two scratch marks on his stomach to support this allegation.
While the father has provided an approximate date of the alleged events, which predate the parties’ separation, he has provided no other particulars regarding the alleged event, other than stating that it was “unprovoked” and caused injury to his face and body.
The mother denies the allegations made by the father. In circumstances where the father has made such a general allegation in the face of the mother’s denial, I am unable to be satisfied to the standard required by s 140(2) of the EvidenceAct that the mother has perpetrated the acts of physical violence against the father in April 2013 as alleged.
Consideration of the father’s allegations that the mother has committed violence against the father’s sister
At paragraph 17 of his Affidavit, the father contends that, at a time when his sister, Ms LL, was the nominated supervisor of D, on 2 December 2014:
The [mother] assaulted her by pushing [his] sister with her car to a concrete post in Car park in Suburb J. [His] sister sustained injuries and had to attend the hospital on the that night and had to go through several therapies.
Noting that the concept of res judicata or issue estoppel does not arise in parenting cases,[41] during the course of the proceedings, I indicated to the parties that, pursuant to s 79ZX(3)(b) of the Act, I was considering having regard to the findings of Judge Neville in respect to the alleged incident which is stated to have occurred on 2 December 2014, and I invited submissions on that issue. In his decision dated 15 June 2015, at paragraph 40, Judge Neville noted that he had watched video recordings of the 2 December 2014 incident that involved the mother and the father’s sister. His Honour observed:
Having heard and watched these recordings they are all quite distinct. They certainly do not support the clear assertions of the Father against the Mother. That said, the only thing that was clear, and which was confirmed from the oral evidence at trial, was that there was a contest between the Mother and the Father’s sister. The children were present. I prefer the general account of the Father’s sister to that of the Mother. The sister’s account confirmed at least that the Mother’s actions in driving away with the door of the car open could reasonably be taken to be unsafe and which led to Mr Khalid’s sister sustaining injury.
No party attempted to persuade me that his Honour’s observations were inaccurate. I, therefore, accept the accuracy of his Honour’s description of the event. His Honour’s observations satisfy me that the mother acted in an unsafe manner but the evidence does not satisfy me that the mother assaulted the father’s sister by pushing her “with her car to a concrete post.”
Consideration of the father’s allegations that the mother has committed violence against the mother’s sister-in-law.
At paragraph 74 through to 76 of his Affidavit, the father alleges that he was advised firstly by D and, subsequently, the mother’s sister-in-law that, in the period between late 2016 and January 2017, when the mother was on a visit to Asia she slapped the wife of her deceased brother on her face.
In parenting proceedings, I am not bound by the rule against the admission of hearsay evidence. However, the nature of the evidence is relevant to its weight. In circumstances where the husband has not provided particulars regarding the time, place or circumstances in which the father alleges that conduct occurred, I am not satisfied to the standard required by s 140(2) of the Evidence Act that the mother assaulted her sister-in-law as alleged by the father.
The mother’s response to the father’s allegations of family violence
In her interview with Ms OO, the mother acknowledged that, in the past, “she would smack the children on the bottom.” She advised the Family Report writer, however, that she now realises that action on her part “is wrong”. The mother advised the Family Report writer that her strategy “now include[s] changing the password on Wi-Fi and taking the children’s mobile telephones from them.” In the absence of the husband presenting evidence of sufficient weight to cause me to doubt the accuracy of those statements made by the mother, I accept that they are accurate.
General finding of past family violence
Having made those findings, I am, nonetheless, satisfied that it is likely that, during the course of the parties’ relationship, the children were exposed to family violence. In that respect, the CYPS appraisal reports note that it is likely that both D and C have been exposed to family violence, the majority of which, the department assessed, to have been perpetrated against the mother and C by the father in the form of physical and emotional abuse.
That conclusion is supported by the finding that I have made that annexure A in the father’s tender bundle is a photograph of C’s face taken by the mother after he had been struck by the father.
According to records held by the CYPS, at an interview held on 7 February 2018 C expressed feelings of depression, loneliness and thoughts of self-harm and suicide. The notes record C presenting as “a highly traumatised boy who has been directly and significantly impacted by the violence and abuse that he has likely been exposed to from a young age.”
As she has lived in the same household as C, I am satisfied that it is also likely that D has been exposed to such family violence. For the reasons I have stated, I accept the validity of the conclusion of the CYPS that it is likely the majority of that family violence has been perpetrated by the father. In coming to that conclusion, I have not only had regard to my findings in respect to the photograph which is annexure A in the father’s tender bundle, I have also had regard to instances of the father’s controlling and belligerent conduct during the course of these proceedings, which I have set out above.
In circumstances where the mother and father are not living together, the children are no longer at risk of being exposed to family violence between the mother and the father. The fact that the children have, however, been exposed to such family violence is relevant contextual background to deciding what orders are necessary to protect the children from emotional and psychological harm in the future.
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters:
In the background section of this decision, I have listed those occasions where a family violence order was made against one or other of the parties. There are currently no family violence orders in place that impact upon either of the parties.
Accordingly, this consideration is only relevant to the extent to which it provides evidence of the extent of the conflict and acrimony that has existed between the parties since they separated.
Sub-section (3)(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.
Further, proceedings would be less likely if the Court acceded to the father’s Application. In that respect, at paragraph 189 of her report, Ms OO notes that:
[The father] has acknowledged his willingness to persist with matters even if advised to cease, and it is likely that if the court does not adopt his proposal, the matter will remain in dispute.
I accept and agree with that assessment. Nevertheless, for reasons which I set out under the subheading of “the issue of risk”, I am satisfied that the unacceptable risk of the child suffering psychological harm in the unsupervised care of her father is such that the consideration set out in s 60CC(3)(l) of the Act is outweighed by the primary consideration of avoiding unacceptable risk to the child.
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
There are no other considerations that I have had regard to in arriving at my decision in this matter.
Conclusion
In this decision, I have endeavoured to address all matters relevant to making orders that are in the best interests of the child, D, including having regard to all of the matters set out in s 60CC of the Act. By far the most relevant consideration is the issue of risk.
For reasons which I have outlined, I am satisfied that the child is at an unacceptable risk of emotional and psychological harm in the unsupervised care of the father. Specifically, I have found that the father has interrogated and manipulated D into making false allegations about the mother and to feel negatively towards the mother.
During the course of these proceedings and in his interactions with Ms OO, the Family Report writer, as well as officers of the CYPS, the father has failed to acknowledge the advice he has received as to the impact of his conduct on the child. To the contrary, he unjustifiably dismisses Ms OO’ opinion, alleging that she is biased and lacking qualifications to express the opinions that she has. He alleges that the CYPS is an incompetent organisation and that officers of the CYPS lie. The father has alleged that the concerns expressed by the Independent Children’s Lawyer are also motivated by bias. Indeed, in that respect, he offensively stated that he perceives the Independent Children’s Lawyer as representing the interests of the mother rather than the best interests of the child.
In the face of the father’s unwillingness to accept and acknowledge expert advice that has been provided regarding the harmful nature of his conduct, I am satisfied that there is a probability that the father will engage in similar conduct in the future.
I accept the validity of the opinion expressed by Ms OO, at paragraph 200 of her report, that, in the event of such a finding being made, “then there is a risk this will continue whilst ever [the father] spends unsupervised time with [D].” I have earlier, in this decision, set out the detrimental nature of those harmful effects on D.
In Blinko & Blinko [2015] FamCAFC 146 at 83, the Full Court confirmed that, in circumstances where the Court is satisfied that a parent represents an unacceptable risk of harm to a child, the Court is required to consider steps that can be taken to ameliorate this risk, including the possibility of, for instance, “supervision of any time or communication between the parent and the child.”
I respectfully agree with and adopt the submission of counsel for the mother that:
It is a serious matter to order that a child either spend no time or communicate with a parent or spend only limited supervised time with them. Such orders properly ought to be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.
Nevertheless, it is clear from the father’s evidence, in the statement that he made to Ms OO, that he will persist in making allegations that the mother has physically and psychologically abused the child. It is clear that both the father and Ms NN have hostile views of the mother and, in the absence of supervision, D would continue to be exposed to those views. As a related issue, I find, as a matter of probability, that, in the event of the child spending unsupervised time with the father, he would continue to encourage her to make false allegations against the mother and C.
I am satisfied that, to prevent that conduct occurring in the future, it is necessary for the child’s time with the father to be supervised and that the amount of time that the child spends with the father be limited. Specifically, in light of the findings of risk that I have made, I accept the recommendation of Ms OO that, in the event of such findings being made, “it is recommended that D spends only supervised recognition time with [the father] on three or four occasions each year.” I further accept her suggestion that it is ordered that “[the father] speaks in English whenever he spends time with D and that if he does not, then his time should be suspended.”
I accept that outcome will detrimentally impact upon D’s relationship with the father, Ms NN and with D’s younger siblings. However, the evidence to which I have referred in these proceedings satisfies me that, if D were to continue to have those relationships, on an unsupervised basis, it will be at the expense of her relationship with the mother and C. I have, in this decision, set out why that outcome would be detrimental to D.
I am conscious that the Orders that I have made would see long, and perhaps, indefinite supervision of the child’s time with the father. I am aware of pronouncements of the Full Court in which they have expressed considerable disapproval of regimes of parenting orders which see protracted or indefinite supervision of the child’s time with a parent: see for example Slater & Light [2013] FamCAFC 4. However, as noted by Tree J in Norton & Landell (Consent final parenting orders) [2015] FamCA 96 at [19], while it is and must be the case that a trial judge is bound by statements of law or general principle adumbrated by the Full Court, that does not mean that each case is not to be decided on its own facts.
In this matter, I have given consideration to alternatives to indefinite supervision, including, for instance, requiring the father to attend a parenting program to assist him to understand the consequences of his actions. The father has simply refused to acknowledge the possibility that the authorities and experts who have expressed concern about his conduct are correct. Indeed, as noted earlier, he accuses them of bias. He accuses officers of the CYPS and the initial family consultant, Ms VV, of lying. In those circumstances, it is simply unrealistic to expect that the father would be responsive to instruction and modify his conduct in light of advice he receives in a parenting program.
Regrettably, therefore, on the facts and circumstances of this matter, I am satisfied that it is necessary to make an order that results in the child spending time with the father only on an indefinite supervised basis and for that time to be restricted to a sufficient number of occasions per year for the child to retain recognition of her father and, to the extent that they attend with the father, Ms NN and D’s younger siblings.
For reasons which I have previously set out, I am also satisfied that restriction should be placed on the father’s attendance at D’s school.
I will, therefore, make orders in accordance with orders 2, 3, 4 and 5 of the orders proposed by the mother.
In light of the history of acrimony between the parties, I will also make orders 6 and 7 as proposed by the mother that the father should be restrained from contacting the mother or D or promoting communication occurring through a third person.
It is appropriate that the mother advise the father of matters concerning the long-term interests of the child and I will, therefore, make orders 8, 9 and 11 as proposed by the mother.
In light of the Application by counsel for the mother for the child be placed on an Airport Watch list, I will modify order 10 as proposed by the mother such that it will take effect after a period of 12 months, which is the period that I intend to specify as the time that the child is to remain on the Airport Watch list. After that time, the mother will be able to travel overseas with the child provided that adequate details of travel are provided to the father.
During the course of these proceedings, concerns were expressed about the father having taken the opportunity to contact D at her school. Concerns were also expressed that the father has taken the opportunity to obtain dental and medical advice which has been utilised to criticise decisions and actions the mother has taken in respect to the child’s dental and medical care. I, therefore, propose to make orders in accordance with order 12 proposed by the mother, save to the extent that I will also include provision that the father be restrained from attending and contacting D’s educational provider or medical practitioners.
As indicated, I will also make an order placing the child on an Airport Watch list for a period of 12 months.
The orders that I make in these proceedings will supersede all previous Orders, including Order 3 of the Orders made by Judge Neville on 15 June 2015, which required the mother to take steps to encourage the child, C, to spend time with the father. For reasons which I have set out previously, including the strong views expressed by C, I do not find that there is any utility in repeating that Order made by Judge Neville.
I certify that the preceding three hundred and ninety six (396) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice McClelland delivered on 27 February 2020.
Associate:
Date: 27 February 2020
[1] [2015] FCCA 1597.
[2] Child and Youth Protection Services Appraisal Form filed 15 April 2019 (marked ‘Exhibit 18M’ in the proceedings).
[3] Letter from Dr AAA of the LLL Medical and Dental Centre dated 25 October 2018 (annexure G of the father’s tender bundle, marked ‘Exhibit 2F’ in the proceedings).
[4] Child and Youth Protection Services Appraisal Form filed 15 April 2019 (marked ‘Exhibit 18M’ in the proceedings).
[5] Child and Youth Protection Services Appraisal Outcome Advice dated 18 January 2019 (annexure M31 of the mother’s tender bundle, marked ‘Exhibit 1M” in the proceedings).
[6]The Hon. Richard Chisholm, “Unacceptable risk – a comparison of the Family Law and Care jurisdictions,” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
[7] Transcript 29 August 2019, pg181 line 5.
[8]Dieter & Dieter [2011] FamCAFC 82 at [61].
[9] The Hon. John Fogarty AM, ‘Unacceptable Risk: A Return to Basis’ (2006) 20 Australia Journal of Family Law 249.
[10] The Hon. Richard Chisholm, “Unacceptable risk – a comparison of the Family Law and Care jurisdictions,” (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
[11] Appraisal report of CYPS dated 5 November 2018 (marked ‘Exhibit 3M’ in the proceedings) at 15.
[12] Transcript 30 August 2019, pg 287-288.
[13] Transcript 30 August 2019, pg 293 line 5.
[14] Transcript 29 August 2019, pg 62 line 20.
[15] See paragraph 74 of Ms VV’s report (marked ‘Exhibit 13M’ in the proceedings).
[16] See page 9 of “Exhibit 18M” in the proceedings.
[17] Transcript 14 November 2019, pg 385 line 5.
[18] Transcript 30 August 2019, pg 301 line20.
[19] As reported by Ms OO in her Family Report at paragraph 40.
[20] Transcript 14 November 2019, pg 360 lines 5-10.
[21] [2015] FCCA 1597.
[22] See ‘Exhibit 10M’ marked in the proceedings.
[23] See “Exhibit 18M” in the proceedings.
[24] See ‘Exhibit 13M’ in the proceedings.
[25] Transcript 28 August 2019, pg 23.
[26] Transcript 29 August 2019, pg 70-71 line 45. Other examples of the father speaking over the mother include Transcript 28 August 2019, pg 222 and 20 line 30-40.
[27] Transcript 28 August 2019, pg 13 line 40 - pg 14 line 10.
[28] Transcript 29 August 2019, pg 168.
[29] Transcript 30 August 2019, pg 194 line 15-35.
[30] Transcript 28 August 2019, pg 17.
[31] Transcript 28 August 2019, pg 107 line 5-20.
[32] In support of this contention the father relied on annexure C of his tender bundle.
[33] In support of this contention the father relies on annexure D and E of his tender bundle.
[34] In support of this contention the father relies upon annexure N to his tender bundle.
[35] In support of this contention the father relies upon annexure M to his tender bundle.
[36] See ‘Exhibit 12M’ marked in the proceedings.
[37] See annexure H to the father’s tender bundle.
[38] In support of that contention, the father relies upon an email which he received from the teacher which is annexure H to his tender bundle (marked ‘Exhibit 2F’ in the proceedings).
[39] In support of that contention, the father relies upon an email which he received from the teacher which is annexure X to his tender bundle (as above).
[40] Transcript 9 December 2019, pg 41 line 20.
[41]Elmi & Munro [2019] FamCAFC 138 at [27].
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