Kinji & Haru
[2022] FedCFamC2F 514
Federal Circuit and Family Court of Australia
(DIVISION 2)
Kinji & Haru [2022] FedCFamC2F 514
File number(s): ADC 309 of 2021 Judgment of: JUDGE BROWN Date of judgment: 26 April 2022 Catchwords: FAMILY LAW – parenting – child aged 12 years old – allegations of family violence – interim hearing – child has reported to court counsellor she does not wish to engage with father – order made for reunification counselling – agreed therapist has declined to remain involved – allegation father has attempted to stalk mother and child – application made by father to resume supervised time – whether order for supervised contact should be suspended – assessment of risk – best interests Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60CA, 60B, 60CC, 62G, 68LA Cases cited: B & B (1988) FLC 91- 957
B & B (1993) FLC 92-357
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman (2015) FLC 93-654
H v W (1995) 126 Fam LR 788
M & M (1988) FLC 91-979
Marvel & Marvel (No 2) [2010] FamCAFC 101
Mazorski v Albright (2007) 37 FamLR 518
R & R: Children’s Wishes (2000) 25 Fam LR 712
Slater & Light [2013] FamCAFC 4
SS v AH [2010] FamCAFC 13
W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892
Division: Division 2 Family Law Number of paragraphs: 117 Date of hearing: 11 April 2022 Place: Adelaide Counsel for the Applicant: Ms James Solicitor for the Applicant: Kin Lawyers Solicitor for the Respondent: Mr Koziol Solicitor for the Independent Children's Lawyer: Ms O’Brien ORDERS
ADC 309 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR KINJI
Applicant
AND: MS HARU
Respondent
AND INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE BROWN
DATE OF ORDER:
26 April 2022
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 8 February 2022 is hereby dismissed.
2.The orders of 17 September 2021 relating to the child communication between the child X born in 2010 and the father continue during the period of the adjournment subject to X’s wishes.
3.Pursuant to Section 62G(2) of the Family Law Act (1975) the parties and the child of the relationship attend upon a Regulation 7 practitioner as nominated by the Dispute Resolution Co-ordinator of the Federal Circuit and Family Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 31 September 2022.
4.The family assessment to deal with the following matters:
(a)to include interviews with the parties, the child and relevant family members;
(b)observed interaction between the child and the parties;
(c)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those wishes;
(d)the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975;
(e)any other matters that the family assessor considers important to the welfare or best interests of the said child.
5.The solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Dispute Resolution Co‑ordinator, Federal Circuit Court of Australia.
6.Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
7.Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference
NOTING:
A.At the date on which a copy of the Report is provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court
8.Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.
9.The matter be listed for final hearing before Judge Brown on 5, 6 & 7 December 2022 at 10.00am NOTING 3 days hearing time has been allocated and will not be exceeded without leave of the Court.
10.Further consideration of the matter is adjourned to 13 October 2022 at 9.30am for Trial directions.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kinji & Haru has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION
These are interim parenting proceedings relating to a child aged 12 years of age. The child concerned is X[1] born in 2010. The parties to the proceedings are X’s father, Mr Kinji and her mother Ms Haru.
[1] Hereinafter referred to as X.
On the one hand, her mother asserts that X is a child of relatively mature years, who is expressing a strong wish not to interact with her father, based on her essentially negative view of him, derived over an extended period of time.
On the other hand, the father asserts that the mother is currently engaged in a process of actively alienating X from him, which requires the court’s urgent but moderate intervention to circumvent, otherwise there is a significant risk that she will lose her paternal relationship, to her long term emotional detriment.
In his submission, the appropriate and modest level of intervention, recognising the child’s apparently strongly held views, would consist of a process of professional re-unification counselling, in conjunction with an immediate process of professionally supervised time, between him and the child concerned. The supervision to be provided on a one on one private basis by a psychologist.
It is the mother’s position that she has previously been open to such an intervention, which was to involve Ms B, an experienced therapist. However, Ms B has declined to provide the therapy, after having met with X because of concerns reported to her about Mr Kinji’s behaviour. In these circumstances, the mother opposes the father’s proposal for supervised time at this juncture.
It is a significant aspect of the mother’s case that she is fearful that the father will abuse any process of supervised time and will use it to follow her or X in order to discover their residential address, which she (Ms Haru) has kept secret from Mr Kinji because of issues relating to family violence. As a result of information provided to her, Ms B also holds similar concerns, which she has conveyed to Ms Haru and her solicitor.
The independent children’s lawyer, appointed to present X’s interests to the court, shares the mother and Ms B’s concerns. Indeed, she has been the conduit pursuant to which many of Ms B’s concerns have been brought to the court’s attention. In addition, she has spoken directly with X.
It is common ground between the parties that Mr Kinji has not interacted with X since early-January 2021, when X and her mother moved out of the parties’ former family home and moved into accommodation, the location of which has been kept secret from the father since that date.
On separation, Ms Haru left a note, in the home, which read as follows:
To Mr Kinji,
I and X are leaving this place today. I don’t think our relationship is family.[2]
[2] See Annexure 1 Affidavit of Mr Kinji filed 22 January 2021.
Thereafter, the father reported the mother and X as missing persons to the police. Later, he learnt that Centrelink had acted to conceal the mother’s name from its public record and Australia Post had redirected X’s mail to an undisclosed address.
The father was born in City C, Country D in 1971. He is a Muslim by religious belief and Country E by ethnicity. The mother was born in Country F in 1980. The parties met in Australia in 2003. They married, in City G, Country D, in 2004. The family lived in Country F between 2010 and May 2017, before returning to live in Australia.
The mother and X are both dual citizens of Country F and Australia. In these circumstances, on 22 January 2021, the father commenced urgent proceedings to prevent the possible departure of X from Australia and also to obtain a Commonwealth Location Order, directed to Centrelink, to provide the mother’s address to the court, in order that his application could be served on Ms Haru.
Such a Commonwealth Location Order was made on 4 March 2021. Ultimately, on 26 March 2021, the mother filed a Notice of Address for Service, indicating her solicitor’s office and later her Response and Affidavit in support, which provided the same address.
On 11 March 2021, the father filed a subpoena directed to South Australia Police directing the Chief Commissioner of Police provide any documentary evidence identifying the residential address of the mother. Ms Haru objected to the subpoena on the basis that she had chosen not to disclose her whereabouts to the applicant father.
On 9 April 2021, Ms Haru filed a Response to the father’s Application. In her supporting Affidavit, she alleged that Mr Kinji had been frequently verbally abusive and aggressive towards her and X. She alleged that this behaviour had occurred over many years, including when the family had been living in Country F.
In his Amended Application, filed on 12 February 2021, the father seeks to be conferred with sole parental responsibility for X and that the child live with each of her parents, as agreed between them, or as ordered by the court. In the alternative, he proposes that the child spend time with him, on each morning and evening, before and after she attends school. He also wishes orders to be made to prevent the child being removed from her previous school, H School.
In her Response, the mother proposes that she should have sole parental responsibility for X, who should continue to live with her. She also seeks a number of injunctions, relating to her personal protection, which would restrain the father coming within 500 metres of her home or X’s school. In terms of X maintaining a relationship, with her father, she proposes that the child spend alternate weekends with her father, provided it is adjudged to be in her (X’s) best interests.
At the first mention of the matter, the father’s Subpoena to South Australia Police was set aside and an injunction was made restraining the mother from removing X from South Australia. The case was then adjourned until 19 April 2021, when an interim hearing was scheduled.
On 19 April 2021, the parties were able to agree on some interim orders. Essentially, it was agreed that X would begin to spend time with her father at a Children’s Contact Centre, which would result in the preparation of a report, after 6 visits, providing details of how X interacted with her father, in this rigorously supervised setting.
Prior to that time, the parties agreed that a friend of the father, Mr J, would supervise X’s time, with her father, for periods of 5 hours, each alternate Saturday. The point of exchange in respective of this arrangement was at a McDonald’s restaurant in suburban Adelaide.
Significantly, at this stage, it was also directed that the parties and X attend a Child Inclusive Conference with a Family Consultant of the court. This conference was scheduled for 9 September 2021.
The plan envisaged by the consent order, for X to spend time with her father, did not eventuate without difficulties. The mother asserts that X repeatedly refused to spend time, with her father, even though a supervisor was present. In addition, Ms Haru has deposed that she had noticed X becoming emotionally dysregulated and reporting that she was feeling unwell before any interaction with her father.
In addition, it has now become apparent that X has been moved from H School, an outcome strongly opposed by her father, and has been enrolled in another school. In these circumstances, on 3 August 2021, the father’s solicitor directed a subpoena to the Department of Education seeking evidence as to the school currently attended by X. Once again, the mother objected to this subpoena and sought that it be set aside, as did the Department itself.
The basis of the Department’s objection to the supply of the documents subpoenaed by Mr Kinji related to safety issues it had identified in respect of X. In this context, the Department’s legal representative wrote that X had been transferred between schools pursuant to a protocol developed between South Australia Police and the Office for Women (Domestic Violence Services).
This protocol authorised that a child’s school could be changed for reasons relating to domestic or family violence. The departmental representative wrote as follows:
…a confidential student transfer is undertaken only when the need for it is supported by evidence provided by SA Police, the Department for Child Protection, and/or support providers such as crisis shelters or domestic violence support centres.[3]
By necessary implication the Department considered that such a change of school was warranted so far as X was concerned. The father disputes this and feels his parental authority had been circumvented by the relevant authorities with the mother’s connivance.
[3] See Notice of Objection-Subpoena filed by Minister for Education on 20 August 2021.
THE CHILD INCLUSIVE CONFERENCE
The Child Inclusive Conference was conducted by Family Consultant Ms K. She summarised the respective positions of the parties, in the following terms:
[Ms Haru] alleged that [Mr Kinji] is easily angered, overly critical of [X], verbally abusive towards [X] and uses cruel punishments to teach [X] ‘lessons’. [Ms Haru] reported that [Mr Kinji’s] relentless emotional abuse of [X], led to [X] suffering with depression and anxiety and not wanting to get out of bed for approximately six months in 2020. [Ms Haru] alleged that [Mr Kinji] does not “understand feelings”.
[Mr Kinji] stated that discussing ‘feelings’ and having open communication was something that was avoided in [Country F] culture. He denied emotionally abusing [X]. He stated that he believes spraying and soaking [X] in cold water, to remind her to water the potatoes in their garden, is a reasonable method of teaching her responsibility.[4]
[4] Child Inclusive Conference Memorandum dated 14 September 2021 at [8]-[9].
In respect of her interview with X, Ms K reported as follows:
[X], presented as an open and articulate young person, who had a growing sense and awareness of what constitutes appropriate discipline. She also presented as hyper vigilant to sounds and noises occurring around her. When the writer opened the door to the main childcare area, the writer observed [X] ‘startle’ almost as if she had to brace herself from an attack, and with what appeared to be a look of fear on her face. She was gently reassured that she was safe by the childcare worker, which appeared to alleviate her initial reaction of fear. She stated she was scared it was her father entering the main childcare area.
[X] is in Year 5. She likes school and has many friends. She loves to read and draw. She reported being significantly happier since moving away from her old school.
Within the first several minutes of her interview, [X] began to cry softly. She cried for the majority of her interview when speaking about her father. She disclosed multiple distressing memories she has in regard to [Mr Kinji]. She stated that talking about them makes her sad and anxious. [X]’s affect during her interview was consistent with her narrative and she presented as confused and plagued by her memories of [Mr Kinji].
[X] disclosed several detailed accounts of times that she felt poorly treated, emotionally pressured, emotionally abused and/or saddened by her father’s comments and/or actions. She provided a level of detail that suggested the incidents had occurred. [X]’s narrative suggested that she had recently felt emotional pressure during phone contact with [Mr Kinji], to rewrite/restate her experiences in order for him to ‘look better’ in these proceedings.
Overall, [X] painted a picture of her father as someone she was extremely fearful of and someone who had emotionally and verbally abused her over a significant period. [X]’s presentation during her interview left the writer concerned that [X] had experienced a significant level of trauma that may be affecting her emotional wellbeing and that which may explain some of her hyper vigilant behaviours. The hyper vigilant behaviours exhibited and described by [X] are consistent with someone who has experienced trauma.[5]
[5] Child Inclusive Conference Memorandum dated 14 September 2021 at [15]-[19].
In her summation of the case, Ms K indicated that there were complicated cultural issues arising in the case. She described X’s narrative of her experience with her father as being compelling, detailed and consistent.[6] Ms K did not consider that there were any signs that X had been influenced by her mother. Rather she presented as fearful of her father.
[6] See Child Inclusive Conference Memorandum dated 14 September 2021 at [25].
other relevant facts
When the case returned to court, given its complexities, I directed that X be independently represented in the proceedings. Her representative is Ms Anna O’Brien, an experienced family lawyer with the Legal Services Commission.
Ms O’Brien is to be regarded as a party of equal importance to X’s parents. Pursuant to the provisions of section 68LA of the Family Law Act 1975 (Cth) (“the Act”) she is under a statutory obligation to review all evidence available to her and then advocate the outcome, which she believes will best serve X’s interests.
The first round of professionally supervised time, organised to occur at the Suburb L Children’s Contact Centre was scheduled for 5 September 2021. X refused to enter the Centre. The mother deposes as follows as to what she says occurred:
On 5 September 2021 we arrived ten minutes early. [X] refused to go to see the father. The service coordinators and I all tried to encourage [X] to go and see the father in some way, even just to wave to him, but she refused. After a while of trying to get [X] to see the father, [X] became upset and said she wanted to leave. The service coordinators allowed us leave instead of continuing to pressure [X] to see the father. When we left [X] said to me ‘How many times do I have to say no, I don’t want to see him again’.[7]
[7] See mother’s Affidavit filed 7 March 2022 at [28]
In this context, on 17 September 2021, the parties agreed that X and her father would attempt reunification counselling/therapy. It was also agreed that X herself would attend the M program, which is a group program, for children, offered by N Family Centre directed to provide psychological support for the children of separated parents.
The father denies that he has ever subjected X to any form of emotional, physical or verbal abuse and feels that there are aspects of Ms K’s report which have been misrepresented. It is understood that X initially indicated to the supervisors at Suburb L that she would give it ago in terms of spending time with her father. In these circumstances, he is concerned that the mother is not supporting X to spend time with him and earlier, when lay supervisors were involved, made the process unduly complicated.
On 7 February 2022, the father filed an interim application seeking to spend time with X for periods of two hours per week, subject to the supervision of Mr O. Mr O is a psychologist by training and provides professional supervision, between parents and their children, on a one-to-one basis. It is proposed that he provide supervision for two hours per week.
In addition, the father seeks to resume having telephone communication regularly with X and to be provided with information regarding her progress at school and any issues regarding her health. Mr Kinji has also made reference to X’s rich but diverse cultural background. As indicated earlier, he is a practising Muslim. The mother’s background is Country F. Although X was born in Australia, she spent seven years of her early childhood in Country F and speaks Country F as her first language.
It is the father’s evidence that the parties chose H School for X in order that she be raised and educated as a moderate Muslim. In the past X has also attended religious education, each Saturday, at the Islamic Centre P.[8] Given the child’s change of school and the cessation of attendance at Islamic Centre P, the father is concerned that X’s cultural background is being undermined. In these circumstances, the father seeks a formal order mandating X’s regular attendance at Islamic Centre P.
[8] Hereinafter referred to as Islamic Centre P.
In her response the mother seeks the dismissal of this application. It is her position that the case should be allocated a final hearing date and a Family Report commissioned pursuant to the provisions of section 62G of the Act.
The mother has indicated a willingness to arrange for X to attend upon a friend of the father for informal religious instruction. However it is her case that this has been difficult to arrange because of Covid lockdowns. She is opposed to X returning to Islamic Centre P because of fears she has that the father may follow X home from the Centre and so reveal her home address to him.
Ms B became involved with the family in late-October 2021. She was directed to conduct six sessions of reunification therapy, with all concerned, before providing a report indicating what progress had been made and what further steps needed to be taken. On 14 December 2021, Ms B wrote to the parties’ respective legal advisors and to the Independent Children’s Lawyer[9] as follows:
We have received information that indicates that the father is actively engaging in violent behaviours, which is contradictory to the behaviour that is required for successful reunification therapy. In addition, the nature of the reports lead me to have concerns about the safety of the mother and the child at the office. Consequently I am withdrawing my services.[10]
[9] Hereinafter referred to as ICL.
[10] See Annexure AKO-1 to the Affidavit of the ICL filed 8 February 2022.
Ms B was asked to provide information detailing the basis on which she had formed the decision to withdraw her professional services from the family. She did so in a report dated 3 February 2022. Essentially, Ms B was of the view that the father lacked insight as to the impact of what she described as his pressured effect, which from Ms B’s perspective was demonstrated by Mr Kinji’s persistent and disrespectful attitude towards the boundaries of others, including herself.[11]
[11] See Annexure AKO-3 to the Affidavit of the ICL filed 8 February 2022.
So far as she herself was concerned, Ms B indicated that Mr Kinji had arrived at her rooms unannounced and demanded her attendance, notwithstanding that she was involved professionally with another person at the time. She was also concerned that he arrived at her office on another occasion, again unannounced, as she was locking the premises and again demanded to be admitted so that he could amend the memory boxes, which had been prepared for use in the therapy with Ms Q. Ms B acknowledged that she had not been frightened by Mr Kinji, on either occasion, but again her concern was his intense insistence and apparent lack of respect for professional boundaries.
Of equal, if not more significance, Ms B was aware that the father had also attended at one of X’s sessions at the M program without prior reference to X. The father agrees that he did drive to the location where X’s last session, at the M program, was scheduled to be held. He describes this as a misguided decision, on his part, which was influenced only by his desire to see X, if only from a distance.[12]
[12] See Affidavit of Mr Kinji filed 7 February 2022 at [49].
The mother has a different view about the incident, of which she asserts X was well aware and was greatly distressed by. She herself deposes that she was very surprised to see Mr Kinji outside the program. She instructed her solicitor to inform Ms B about the matter.
Ms Haru deposes as follows, in respect of her perception of how the current situation is impacting emotionally, not only on X but also on her relationship with her mother:
I disagree that [X] is bearing the responsibility of parenting decisions. I have tried everything I can to get [X] to see her father. She has consistently refused and has become distressed. I am only able to push so much before I need to stop and respect [X]’s wishes or risk severely damaging our relationship and her willingness to trust me.[13]
[13] See Affidavit of Ms Haru filed 7 March 2022 at [60].
Prior to her decision to suspend the therapy, Ms B was able to interview X. X acknowledged that, in the past, she had spent a significant amount of time with her father. Ms B opined that, if X’s experience of her father was one in which she perceived that her views were not valued by her father, X was likely to feel overwhelmed and therefore avoidant of wanting to spend time with him.
In her report dated 3 February 2022, Ms B described X as follows:
The child was intelligent and reflective. She spoke about experiences like snorkelling with her father, and how his behaviour made her afraid of water due to his lack of sensitivity to her anxiety about deep water. The child also spoke about feeling as though she had to hide the strength of her relationship she has with her mother from the father as she felt that her father struggled with this. The child spoke about secreting phone calls to her mother whilst the father and she camped. The child insinuates a level of anxiety in her relationship with her father, stating that if she does something wrong, he "would shout at me". Furthermore, she lacks confidence in his capacity to change, as she said that the last time the mother left the father, he promised to change and he did not.
In speaking with the child, she articulated the detrimental effect having parents who were in chronic conflict had on her mental health. She also spoke about her struggles with the father denigrating the mother to her. This is a significant issue for the child, and something the father will need to address as part of his attempts to repair his relationship with the child.[14]
[14] See Annexure -3 to the Affidavit of the ICL filed 8 February 2022.
In the context of this latter recommendation, Ms B recommended that the father attend a course of counselling directed towards issues of coercive and controlling behaviour and X herself have her own individual therapy.
As previously indicated, Ms B alluded to concerns, which she had regarding X and the mother’s personal safety, however she did not provide specific details of what these concerns were. In this context, the ICL was requested to approach Ms B and ask her if she would be prepared to provide this information to the court.
Ms B provided this information in late-March 2022. Essentially, she reported that she had been contacted by a mutual acquaintance of the parties, who informed her that the father had requested to borrow (their) car because Mr Kinji planned to follow the mother and X after their appointment with Ms B. As a consequence of these matters, Ms B wrote as follows:
This information that was provided, along with the information that the father attended the child’s [M] program unexpectedly, gave rise to the concern that the father was behaving in a way which falls under the umbrella of family violence. Such behaviour does not give faith to the Therapist that the father would not unexpectedly attend the Adelaide Resolutions Centre offices and given the allegations made in that letter, it is likely that the mother would be in a heightened state of anxiety when attending which is not conducive to an optimal therapeutic environment which is required for the purpose of reunification therapy.[15]
[15] See Annexure AKO-1 to the Affidavit of the ICL filed 8 April 2022.
More recently again, the mother has filed an affidavit in which she has raised concerns that the father has been accessing automatic teller machines in areas of Adelaide, which cause her to believe that he may possibly be attempting to keep her under his surveillance to discover where she and X reside. This causes her a great deal of concern.
The primary difficulties in the case, at this stage, are easily stated. The mother has no proposals as to how X can have any form of relationship with other father, at this interim stage, other than perhaps through the exchange of cards, gifts and letters. The mother’s only proposals to advance the case are procedural in nature and involve the court obtaining a more detailed expert report and fixing the case for a more exhaustive examination of the evidence arising in the case.
At this stage, the major evidentiary issue is whether X has or has not been exposed to family violence, emanating from her father and what are the consequences of this for her, in emotional and physical terms. It being a major component of the mother’s case that there is a significant degree of risk that, due to his lack of personal insight and disrespect for boundaries, the father may seek to impose himself on both her and X, with possibly dangerous and unpredictable consequences. One of the central tasks, for the court, at this stage, is assessing the degree of risk arising and putting in place appropriate safeguards commensurate with the level of risk it assesses.
The danger of the court adopting the mother’s procedural approach, at this stage, from the father’s perspective is that it will cause delay, which will inevitably lead to X losing the potential to have a properly meaningful level of relationship with him. This is a significant danger, given the time which has elapsed since he last engaged with X. Further he submits that this danger will be further compounded because X will suffer the added loss of exposure to her cultural and religious background.
In these circumstances, he contends that his proposal of professionally supervised time, involving Mr O represents a safe, incremental and proportional response to the risks arising in the case. It will allow X to be reintroduced to him in a safe and protected manner for relatively brief periods of time.
The mother approaches the case from a perspective of protective concerns, relating to exposure to family violence, both for herself and X. Associated with these concerns are issues related to X’s best interests, particularly what she would assert is the child’s compromised relationship with her father, which has caused her to hold strong views about him, which the court is required to consider carefully, particularly in the context of the circumstances which led her to hold those view.
Ms O’Brien has been instrumental in obtaining further information from Ms B regarding the reasons she (Ms B) has elected to discontinue the reunification counselling between X and Mr Kinji. Ms O’Brien is concerned about the possible safety implications of this information, for both X and Ms Haru.
In these circumstances, she does not favour the intervention, involving Mr O, proposed by the father. Rather, she supports the mother’s position that the next step in the case is a more thorough investigation of X’s views and her relationship with her father, which can be undertaken through the mechanism of a court ordered family report.
Legal principles Applicable
These proceedings arise at an interim stage, which necessarily restricts the extent and nature of the evidence before the court. Interim hearings very often arise against a background of serious family crisis and controversy. Obviously this is the situation in the present matter. Given the nature of the particular crisis involved, the court may be required to make any necessary determination expeditiously.
As a consequence, any orders made by the court, at this stage, are provisional in nature and so capable of revision later, following a more detailed inquiry, involving a more thorough canvassing of evidence, which is also later likely to be more extensive, particularly in terms of expert evidence.
The Full Court, in the case of Marvel & Marvel (No 2)[16] summarised the difficulties arising for the court at the interim stage and said as follows in respect of the nature of the approach to be taken and the rationale for such an approach:
Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing.
I remind the parties that I am not deciding final arrangements for the parenting of X in the context of the current proceedings.
[16] Marvel & Marvel (No 2) [2010] FamCAFC 101 at [120]
At the outset, it is to be noted that, although the nature of the hearing is different, at the interim stage as opposed to the final hearing stage, the legal principles to be applied are the same. They are contained in Part VII of the Family Law Act 1975.
In deciding whether to make any particular parenting orders, in relation to a child, the court must regard the best interests of that child as the paramount or most important consideration.[17]
[17] Family Law Act 1975 (Cth) s 60CA.
The matters which the court must take into account, in deciding how a child’s best interests are to be served, are set out specifically, in list form, in section 60CC.
The section creates two classes of considerations which are relevant – primary considerations and a longer list of additional considerations. Generally speaking, the court should give greater weight to the primary considerations, which closely tie in with the overall objects and principles of the Act set out in section 60B.
There are two primary considerations, which are as follows:
a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
As a result of the insertion of section 60CC(2A) into the Act, the court is now directed in applying the primary considerations “to give greater weight” to the primary consideration relating to protective concerns applicable to the children who are the subject of the relevant proceedings.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.” Future protective issues for a child are the court’s priority.
The expression meaningful is not specifically defined in the Act. It is an ordinary English word. In Mazorski v Albright[18] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[18] See Mazorski v Albright (2007) 37 FamLR 518 at 526 [26]
The expression meaningful is also used in section 60B(1)(a). The court is directed to ensure that a child’s best interests are met by ensuring the children have the benefit of both their parents having a meaningful involvement in their lives. As a verb, involve means to participate or share experience.
Accordingly, in my view, the rationale of Part VII of the Act is that children derive benefits from feeling that their parents are involved or participating in their lives. A child’s life is, by necessary definition, every activity in which the child takes part. Literally, it means the child’s existence, as an individual.
Other specific criteria, relating to how the court is directed to consider how the best interests of any children concerned may be served, by any order which is made, are set out in section 60CC(3). There are fourteen such criteria, which are categorised as being additional considerations. Depending on the circumstances of the case concerned, one or more of these factors may come to the fore.
In this particular case, sub-paragraphs (a);(b);(d);(f);(g);(i) and (j) of section 60CC(3) are likely to be relevant. These subparagraphs deal with the following issues:
·Any views expressed by the child and any factors influencing such views, particularly the maturity and insight of the child concerned;
·The nature of the child’s relationship with parents and significant other persons, including grandparents;
·The effects of any change in the children’s circumstances;
·The capacity of parents to provide for the child’s emotional and intellectual needs;
·The cultural background of the child concerned;
·The attitudes to the responsibilities of being a parent demonstrated by the parties concerned;
·Family violence involving the child or a member of the child’s family.
Pursuant to section 60CC(3)(m), the court is empowered to have regard to any other fact or circumstance, which it considers relevant. This ensures that the infinite variety of individual children’s circumstances may be addressed in any order which the court makes.
Family violence is defined by section 4AB(1) of the Family Law Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
·an assault;
·a sexual assault or other sexually abusive behaviour;
·stalking;
·repeated derogatory taunts;
·intentionally damaging or destroying property; and
·the withholding of financial support.
Accordingly, family violence means not only violence, which causes a family member to be fearful, such as a direct assault to the person, but also encompasses behaviour that unreasonably coerces or controls that person. It is the mother’s case that the father has verbally abused her and X, in the past and more significantly has been stalking her and the child, by attending at M and Ms B’s office.
Ms Haru asserts that she is fearful that Mr Kinji will follow her to her home, the location of which she wishes to remain confidential to her and X. It is her concern that the father wishes, in some way, to exert some form of control over her, by knowing where she and X live. In this context, it is her position that the concerns raised by her have been acknowledged by both SAPOL and the Department of Education. Accordingly, they cannot be regarded as being spurious.
Pursuant to section 4AB(3) of the Act, a child is exposed to family violence if he or she sees or hears family violence or otherwise experiences the effects of family violence. It is the mother’s case that X has been exposed to family violence, in the sense envisaged by the section.
Conclusions
This is a case which is concerned with the assessment of risk, which is formulated in the following terms. On the one hand, there is the risk of X and the mother being placed in a situation in which their emotional and physical safety is compromised because, for X, she perceives she is being placed in a situation against her will and for Ms Haru her sense that her personal security is under threat because of what she asserts is a realistic and substantial possibility Mr Kinji will attempt to locate where she lives.
On the other hand, there is the risk that X will lose a beneficial relationship, with her father, on the basis of uncertain and untested allegations against him, within a context which he asserts is consistent with the mother attempting to alienate X from him and where he himself vehemently denies that he has acted in a way which indicates that he has done anything actually to expose either X or Ms Haru to direct physical harm.
As I understand his case, it is his position that the mother has either exaggerated her concerns about his attendance at M Program and Ms B’s office or consciously misconstrued his actions, which only arose because of his understandable desire to reconnect with X, which was misguided on his part rather than malign or sinister in intent. As such, in his submission, it would be contrary to X’s best interest to interrupt the resumption of her relationship, with him, possibly for an extremely lengthy period of time.
In Deiter & Deiter,[19] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it. The court cannot postpone the risk assessment task indefinitely or delay it because the issue arises at an interim stage.
[19] See Deiter & Deiter [2011] FamCAFC 82 at [61]
In SS v AH[20] the Full Court indicated, in the context of discussing the obligations of the court, whilst conducting interim children’s proceedings, in circumstances where the evidence available was contradictory in nature, but nonetheless raised significant welfare concerns for the children concerned as follows:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[20] See SS v AH [2010] FamCAFC 13 at [100].
In Eaby & Speelman[21] the Full Court endorsed this approach as enabling “the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.” In essence, the court is not in a position to ignore child protection issues, merely because those issues are incapable of definite resolution, at the interim stage. This is the position in the matter currently before the court.
[21] See Eaby & Speelman (2015) FLC 93-654 at 80,332 [19].
Necessarily how risk is approached will depend on the degree of risk involved and the individual circumstances of the case concerned. As indicated at the outset, more often than not, the court adopts a more cautious approach, at the interim stage, being aware that a conservative interim order can be reversed or extended upon when further material is to hand.
In M & M,[22] the High Court formulated a test, which has since been referred to as the “unacceptable risk test” as means of balancing the benefits arising for a child of interacting with a parent with possible detriments arising from exposure to that parent.
[22] See M & M (1988) FLC 91-979 at page 77,081.
Essentially the court should not grant time to a parent with a child, if the situation envisaged would expose the child concerned to an unacceptable risk suffering some form of harm or abuse. The standard of proof applicable to the assessment of risk, in this context, is the ordinary civil standard.[23] The Full Court in Slater & Light[24] expressed the task of assessing risk in the following terms:
The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.
[23] See B & B (1988) FLC 91- 957 at 76,935.
[24] Slater & Light [2013] FamCAFC 4 at [37].
In the current matter, Mr Kinji proposes that he and X interact subject to the supervision of a professional person, with psychological qualifications, namely Mr O. One of the difficulties of this aspect of the father’s case is that there is currently no independent evidence available from Mr O regarding his knowledge, if any, of the particular intricacies of the case and how he would approach them. In addition, there is no evidence to indicate that he has met with X and made any attempts to develop some form of rapport with her.
Up to this point, the intervention of professional supervision, at a Children’s Contact Centre, has not proven to be successful in persuading X to engage with her father. In addition, the involvement of the father’s friend has also produced mixed results.
In W & W the Full Court indicated that any order involving issues of supervision, whether professional or lay, had the potential to have long term consequences for any child concerned and, as such, required careful consideration. The Full Court declined to provide guidelines as to when supervised time should or should not be order.[25]
[25] See W & W [Abuse allegations: unacceptable risk] [2005] FamCA 892 at [115]
I appreciate that such consideration are relevant to the current matter, given the extended period during which X has not engaged with her father to any significant degree and the implications such estrangement may have on her capacity to have a meaningful level of relationship with her father. The intervention of Mr O has the potential to allow X to interact, with a father, in a more relaxed and less institutional setting than a Children’s Contact Centre, whilst still being subject to the oversight of Mr O.
In general terms, I accept that, in purely objective terms, X is likely to be close to completely safe, in a physical sense, whilst Mr O is close by. However, that does not necessarily mean that his presence may ensure that she will retain a degree of emotional equilibrium during the process. In addition, it is unclear as to how X may react if she feels that her apparent wishes, as expressed to Ms K and her mother have been disregarded.
Mr O is to be regarded as having expertise in supervising time between parents and children in challenging circumstances, including those in which the child concerned has, ostensibly at least, indicated a preference not to engage with the parent concerned. In addition, I accept that Mr O is likely to be alive to protective concerns relating to X and therefore can be anticipated to respond in an appropriate manner if any threat arises to the child concerned.
However, the fact remains, the court knows nothing about how he would approach the idiosyncratic difficulties arising in this case, the most significant of which is the marked reluctance of the child concerned to engage with her father and who has been reported as displaying indicia of hypervigilance. In my view, the potential supervision issues arising in the case are not without their complexities.
There can be no doubt that the mother is currently X’s undisputed primary carer and has been since the parties separated in early 2021. Ms Haru, like X herself, is currently extremely anxious about engaging with Mr Kinji in any form whatsoever. She has attempted to keep her residential address secret from him. However, Mr Kinji, thus far without success, has attempted to utilise court process to obtain her address.
In addition, in my view, there is a significant amount of evidence, albeit contested by the father, which indicates that the mother is entitled to hold a reasonable view that the father may be inclined to subject her and X to his surveillance. Given the dynamics of this case, this scenario is likely to make her (and indeed X) fearful. In my assessment, such fears cannot be easily dismissed as being objectively unreasonable, even if subjectively strongly held.
In these circumstances, particularly the fact that Ms Haru must be regarded as the most significant figure in X’s life at present, both in terms of being her primary source of emotional as well as physical succour, how she (Ms Haru) is likely to react to the prospect of X interacting with Mr Kinji, including her level of anxiety that such interactions may be subject to abuse by him, must be regarded as a significant element of how the court assesses risk in this particular case.
In B & B[26] the Full Court said as follows:
…it is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
[26] B & B (1993) FLC 92-357 at 79,780
In my view, these comments are apposite to the present matter. For the reasons provided essentially by Ms B, neither the mother nor X are likely to feel safe in respect of professional supervision no matter how vigilant and professional are the services to be provided by Mr O. In my view, this is a significant matter in respect of how this interim application should be approached. It mandates that that the court should adopt a conservative approach to it.
At this stage, I consider that is an unacceptable degree of risk arising from X interacting with her father, even if subject to the direct supervision of Mr O. These risks include the risk that the mother and X will be exposed to family violence, in the form of being stalked by Mr Kinji.
In my view, these risks must be considered to have a real level of traction, given Mr Kinji’s attendance at M Program and what has been reported by Ms B. In objective terms, these factors are likely to make Ms Haru feel frightened. As such, they are likely to impact upon her capacity to parent X to her optimal capacity. This is important given she must be considered X’s sole carer at the present time. They are factors which militate in favour of the court taking a cautious and conservative approach, at this interim stage.
In my view, similar considerations should apply to how the court approaches the views currently said to be expressed by X, as reported to the independent court expert, Ms K. In this context, I accept that Ms K’s memorandum must be regarded as provisional in nature and the manner in which she approached the task allotted to her has not been subject to any detailed scrutiny as yet, certainly not so far as cross examination is concerned. I also appreciate that the time for X to express her views was limited and it remains possible that, at a later stage, she may elect to change these views or more evidence may indicate that her view are not unaffected by the influence of others, particularly Ms Haru.
However, at this early stage, given the potential emotional lability arising between any direct interactions between X and her father, no matter how closely controlled, that it would be imprudent of the court to disregard what X has indicated in respect of her spending time with her father.
The applicable legislation requires me to consider any views expressed by the child concerned and evaluate any factors which may affect the weight to be given to those views, such as the children’s maturity or level of understanding. The legislation speaks of views rather than wishes. The latter is a more concrete concept; the former is more addressed to perceptions and feelings.[27]
[27] See Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) at [56].
Accordingly, a child is not required to make a decision about what the appropriate outcome is in any particular case. Nor are they required to express an explicit wish as to which parent or other significant person they want to live with or spend time with.
However, it seems that the court is required to explore a child’s perception of what he or she feels is likely to be best for him or her. Very often these perceptions will be ambivalent and difficult to express or quantify. This is particularly so with younger children. This does not mean that a child’s view should be disregarded.
To the contrary, over time, there has been an increase in the judicial regard given to the rights of children in proceedings such as these. It is often said that children have a right to be heard. Certainly children’s views are important and requiring of being given “proper and realistic weight” rather than token regard.[28]
[28] See H v W (1995) 126 Fam LR 788, 797 (Fogarty, Baker and Kay JJ).
It is also impossible to catalogue all the factors which may be at play in shaping a child’s view in any given case. Matters of individual preference are idiosyncratic but no less important for that. It has been said that the process of weighing up a child’s professed view is “a process of intuitive synthesis”.[29] What is done with those views is a matter of common sense in the overall assessment of what is likely to be in a child’s best interests.
[29] See R & R: Children’s Wishes (2000) 25 Fam LR 712, 724 [54] (Nicholson CJ, Finn & Guest JJ).
X is currently twelve years of age. As such, she cannot be regarded as fully mature. Ms K, who has an advantage over me in this regard, having personally met X, regarded her as an open and articulate person. I appreciate that it may well prove to be the case that she does not know what is best for her, in any long term sense, but it seems to me that she must be regarded as having some level of insight into her position and so be able to express some form of idiosyncratic and informed opinion. There is nothing to indicate that she is merely mouthing what her mother wants her to say. In my view, at this stage, the court must give some credence to her views, as expressed to Ms K.
I appreciate that X inherits a rich and complex cultural and religious background from each of her parents, which she has a right to share with those who stem from the same traditions and context. In this case, chiefly her parents. I acknowledge that religious instruction, for X, is a matter of crucial importance for Mr Kinji.
Given the other considerations in the case, there is no easy manner in which these issues can be resolved at the interim stage, particularly given the protective concerns, which have been identified as pertaining to X, particularly the risk of her being subjected to the risk of exposure to family violence, as I have characterised it. Again, I have formed the view that these are issues which warrant further investigation through the mechanism of a family report.
As I am at pains to point out to all concerned, particularly Mr Kinji, I am not deciding this case on a final basis at this stage. In my view, the case is a complex and multifactorial one, which warrants a cautious and conservative approach, whilst further evidence is gathered.
This may include more evidence of Mr Kinji’s willingness to engage with the therapist recommended by Ms B. It will also involve a more nuanced investigation of the nature of X’s relationship with her father and a more thorough investigation of her views as to what is the appropriate outcome in the case. This will take the form of a Family Report.
However, at this stage, pending the provision of this further evidence, for the reasons provided in this judgment, I am not prepared to accede to the father’s application for supervised time with X. At this stage, I have grave concerns that such an intervention could be successfully implemented.
For those reasons, I will order that a Family Report be prepared to be released to the parties on or before 31 September 2022. I will also allocate the case for final hearing on 5, 6 & 7 December 2022. The case will be listed for directions, following the release of the family report on 13 October 2022.
The terms of the current consent order made on 17 September 2021 envisage X being able to talk on the telephone on a weekly basis, subject to her mother making the necessary call on X’s direction to her and so subject to X’s volition. It seems unlikely that this communication has occurred in the short to medium term. However, I do not propose to discharge the order at this stage.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown. Associate:
Dated: 26 April 2022
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