Krish and Shah

[2016] FamCA 116

FAMILY COURT OF AUSTRALIA

KRISH & SHAH [2016] FamCA 116

FAMILY LAW – CHILDREN – Interim parenting – With whom the children live – With whom the children spend time – Best interests of the child – Parental responsibility – Allegations of children’s exposure to family violence perpetrated by paternal family – Need to protect the children from harm – Benefit to the children of a meaningful relationship – Nature of the children’s relationships – Likely effect of any change in the children’s circumstances – No order made for parental responsibility – Orders proposed by the mother in the best interests of the children.

Family Law Act 1975 (Cth)ss 60CC, 61C, 61DA, 65DAC

Deiter & Deiter [2011] FamCAFC 82.
George & George [2013] FamCAFC 182.
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346.
Mazorski & Albright (2007) Fam LR 518.
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92.
SS & AH [2010] FamCAFC 13.

APPLICANT: Ms Krish

RESPONDENT: Mr Shah

FILE NUMBER: PAC 618 of 2016

DATE DELIVERED: 15 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 February 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW Sydney

SOLICITOR FOR THE RESPONDENT: Clinch Long Letherbarrow

Orders

1. The Registrar is requested to contact the Registrar of Suburb B Local Court and obtain court papers in relation to any proceedings involving the parties that were before the court on 10 February 2016.

2. The children C born … 2012 and D born … 2014 live with the mother.

3. The children spend time with the father for a three hour period each Saturday and Sunday at times as agreed between the parties.

4. Change over with respect to the father’s time is to occur at a public place as agreed between the parties.

5. The father is restrained from taking the children to his home during the time he spends with them.

6. Pending further order, each party and their agents are restrained from removing or attempting to remove or causing or permitting the removal of the children C born … 2012 (male) and D born … 2014 (male) from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the children reach the age of 18 years or the Court orders its removal.

7. The parties participate in the Child Responsive Program with a Family Consultant at 9am on 24 May 2016.  The mother shall facilitate the children’s attendance at this time.

8. The Court is requested to arrange an Interpreter to assist the mother on 24 May 2016.

9. The father is to provide all of the children’s clothing and personal belongings to the mother as arranged between the parties legal representatives.

10. The father may communicate with the children by way of telephone and other electronic means as agreed between the parties.

THE COURT NOTES

1. As no interim orders in respect to parental responsibility have been made, each of the parents holds parental responsibility for the children under section 61C of the Family Law Act.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Krish & Shah has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 618  of 2016

Ms Krish

Applicant

And

Mr Shah

Respondent

REASONS FOR JUDGMENT

Background

1. The parents of two little boys, aged three and almost two, are in dispute regarding their future parenting. 

2. The mother says she and the children have been placed in a difficult situation where they’ve resided with the husband’s extended family and the living arrangements were characterised by significant family violence.  She proposes interim orders that would see the children live with her and spend time with their father for three hours each Saturday and Sunday.

3. The father wishes to maintain the current arrangement and seeks orders that the children live with him and spend supervised time with their mother, as agreed between the parties, with such time to occur at the former family home.  The question for me to determine is which of these proposed arrangements is in the best interests of the children. 

4. The parents, who are in their 30s are of Country E heritage, were born in Country E and married there in 2010.  The father, who had been living in Australia for some time, returned to live here and the mother subsequently moved in May 2011.  The parents have since then, at all times, lived with other members of the paternal family in Western Sydney, in particular, with the paternal grandmother, the father’s brother and his wife and children.  The father works full time outside the home and the mother has not been employed since she arrived in this country. 

5. The mother alleges that the paternal family members have perpetrated family violence against her since her arrival, including verbal abuse and physical abuse perpetrated by the paternal grandmother, and that the father has exercised financial control and has exhibited other controlling behaviour, such as recording of her telephone conversations.  She also alleges a number of physical assaults perpetrated by the father and the father’s brother against her, on occasions, instigated by the paternal grandmother.  The allegations of violence perpetrated by the father and other members of his family are denied by him.

6. The parents have two boys.  The eldest who was born in 2012 is currently three and a half, and the youngest was born in 2014 and is almost two.  The mother has cared for the children throughout their lives, but there has been significant assistance from the extended paternal family, especially the paternal grandmother, and from the father when he is at home. 

7. The parents separated on 5 February following an incident at the home when the mother moved out.  Although I understand that the father disputes the incident which led to the mother leaving the family home, he does not give an account of the circumstances which led to her leaving.  The mother says that she had sought external help because she did not feel safe in her home, and when it became apparent that she was attempting to leave the home, the father locked her outside with one of the children and, subsequently, he and his mother grabbed hold of the child and pushed her out of the house. 

8. There is no dispute that police were called and that the father has been charged with an assault as a result of the incident and an apprehended domestic violence order has been issued against him for the protection of the mother.  There is also no dispute that a similar order has been made against the father’s brother for the protection of the mother. 

9. The mother is living in an undisclosed location, which has been arranged through a domestic violence service.  That service has refuge accommodation available for the mother and children in the event that the children live with her.  The service will also assist the mother to find more permanent accommodation. 

10. The mother has visited the children on one occasion since 5 February and says that she was permitted to visit in the front yard of the home only.  The mother says that the children became distressed when they saw her and wanted to go with her and that her eldest son said to her, “Mum, the baby is so upset.  Take the baby with you.  I can stay with dad.”  The mother says that the father has not permitted her to take the children with her. 

The Law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[1]. 

   [1] (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346.

2. Goode (supra) requires that the Court identify the competing proposals, identify the issues in dispute and identify the agreed or uncontested relevant facts.  In applying the law to the uncontested facts, the Court must uphold the relevant objects and principles in the part of the Act dealing with parenting, and in deciding whether to make a particular parenting order, must regard the best interests of the child as the paramount consideration.  In addition to the uncontested facts, Full Court authority makes it clear that the Court may have some regard to the matters in dispute.  In the case of SS & AH[2], their Honours said, at [100]:

   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..

   [2] [2010] FamCAFC 13.

3. Similar statements were made in the cases of George & George[3] and in the case of Deiter & Deiter[4].  In Deiter (supra), the Court was particularly concerned with the situation where the contested facts related to an assessment of risk and where it was said, at [61]:

   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. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

   [3] [2013] FamCAFC 182.

   [4] [2011] FamCAFC 82.

4. In this matter, the mother alleges that the father and members of his extended family have perpetrated violence against her throughout the relationship and that other family members perpetrate family violence against each other, to which the children are exposed.  It is a central allegation and the reason the mother says that she left the relationship.  In my view, it is self-evident that if the harmful events have occurred that it would have a significant impact upon the children to be exposed to those events. 

5. While it is not possible to make any definitive finding as to whether the events have occurred as the mother alleges, there are a number of matters that support the allegations made by the mother.  For example, it does not appear to be in dispute that police have previously attended the parents’ home in response to allegations that the mother has been the victim of violence and that police had sought an apprehended violence order in April 2015 for the mother’s protection against the father’s brother.  At Court, that matter did not continue, as the mother told police that she did not believe that there would be further incidents, and she supported the withdrawal of the application for the order at Court at the time. 

6. It is also not disputed that police attended the family home on 5 February 2016 when the mother left the home.  Although the mother refers to police applying for and obtaining a provisional Apprehended Domestic Violence Order (ADVO) at the time, it also became apparent in the course of proceedings today that the father has been charged with respect to that incident. 

7. In his affidavit, sworn today, the father said that he did not know whether he had been charged with a criminal offence and alleges that the mother has overstated what actually occurred.  When I indicated that I intended obtaining the Court papers from the Local Court, the father conceded that he had been charged with assault as a result of the incident.  Both the charge and the ADVO were listed in Suburb B Local Court on 10 February 2016 and the Court continued the provisional order protecting the mother on an interim basis. 

8. The mother’s Notice of Risk sets out similar allegations of violent and controlling behaviour and the children’s exposure to family violence as those set out in her affidavit.  So far as controlling behaviour is concerned, in my view, it is of significance that the father proposes that the mother’s time with the children occur at his home and that it be supervised even though the broad and non-specific allegations that he makes in his Notice of Risk would not appear to be of the magnitude that requires supervision.

9. In my view, in these circumstances, although an assessment of the mother’s allegations are, of necessity, limited, there is some evidence to support the allegations she makes. 

10. The other matter to consider in determining an interim application is the likely duration of the interim orders.  This is especially so in cases where the interim orders under consideration involve some disadvantages which may need to be endured by the children under consideration.  The disadvantages to be endured in this application are clearly the separation from one parent and the limited nature of contact with the other parent proposed by the orders.  These proceedings were very recently commenced and it is likely to be many months before they’re finally determined. 

11. These interim orders will continue at least until the parents and children have been assessed initially as part of the Child Responsive Program.  Unless there is a significant change in circumstances that result in the interim orders being revisited, this parenting arrangement may continue until the dispute is finally resolved. 

Parental responsibility

1. The first order sought by the father is with respect to parental responsibility for the children.  Initially, he sought sole parental responsibility for the children, but, in the course of the proceedings, he accepted that he could not establish a basis upon which sole parental responsibility be allocated to him and would be content with shared parental responsibility.  The mother does not seek an order for parental responsibility at the interim stage. 

2. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that each of the parents of a child has parental responsibility for the children.

3. In Goode (supra), the Court held that there is a difference between parental responsibility, which exists as a result of s 61C, and an order for shared parental responsibility, which has the effect set out in s 65DAC. The Court held that, in the former, as there is no court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for an equal shared parental responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court otherwise provides.

4. Under s 61DA(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.  The presumption does not apply if there are reasonable grounds to believe that a parent or a person who lives with the parent has engaged in abuse of a child or another child or family violence, or, when the Court is making an interim order, the Court considers it would not be appropriate in the circumstances for the presumption to be applied when making that order. 

5. In my view, it is not appropriate in the circumstances for the presumption to be applied when many of the matters in relation to the best interests of children are still in dispute and no findings have been made.  In these circumstances, it would not be appropriate to make any order for equal shared parental responsibility and, at law, the parents will continue to hold parental responsibility for the children.

Other parenting orders

1. So far as the other matters are concerned, the Court must make such orders as are in the best interests of the children as a result of the consideration of the matters set out in s 60CC.  In determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) and (3).  The primary considerations, which are contained in subsection (2), are the benefit to the child of having a meaningful relationship with both of the child’s parents;  and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Section 60CC(2A) provides that in applying these considerations the Court is to give greater weight to the need to protect the children from harm than to the benefit of the children having a meaningful relationship with both of the child’s parents. 

2. The mother’s interim parental proposals would result in the children having the benefit of a meaningful relationship with both of the child’s parents, having regard to the authorities with respect to the meaning to be attached to the expression “meaningful relationship”,[5] as the children would spend time with their father on each day of each weekend. 

   [5] See Mazorski & Albright (2007) Fam LR 518; McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92.

3. The same cannot be said of the father’s proposal as he does not set out in his response any specific time for the children to spend with their mother in the event they live with him.  He simply states that it is to be as agreed between the parties.  And as previously noted, he proposes that it be supervised.  Having regard to the mother’s allegations with respect to violence and controlling behaviour, in my view, there is a real risk that the parties will not reach agreement in relation to the mother’s time, and, in these circumstances, the children may be deprived of any contact with their mother. 

4. The issue of protection from harm from being subjected to, or exposed to, family violence is a central feature of the mother’s application.  It is her case that due to cultural norms, conflicts and family dynamics in this matter that she has been the subject of family violence from members of the paternal family throughout her marriage, and that her children have been exposed to family violence perpetrated by the father, paternal grandmother and paternal uncle throughout their lives. 

5. As previously indicated, she does not suggest that the children should spend no time with their father and, indeed, proposes that it would occur on each weekend day every week.  However, she also proposes that this time occur away from the family home and that changeover occur in a public place to protect the children from the psychological harm of being exposed to violence and, in particular, violence in their home.  In my view, these proposals would minimise the likelihood of the children being exposed to ongoing family violence and would adequately protect them. 

6. Although the father only makes generalised claims that the mother has subjected the children to verbal abuse and threatened to withhold them from him, he proposes that the children’s time with their mother be supervised.  It appears to me that this proposed order was not well thought out as he did not identify any proposed supervisor, and, in the course of submissions and following an inquiry about the identity of such a person, suggested that a neighbour may be an appropriate supervisor. 

7. I am not satisfied that the allegations he makes, even taken at the highest, requires that supervision be imposed in the event that I otherwise make the orders he seeks. 

8. So far as the other considerations are concerned, the children are too young to have expressed any views, and although the parents each attribute statements to them, I cannot attach any weight to those statements.

9. The nature of the relationship the children have with each of their parents and other significant people is obviously an important matter.  There is no dispute that the children had not spent a single night away from their mother until she left the home on 5 February.  There’s also no dispute that the father worked outside the home and that the mother cared for the children, albeit with some assistance from other paternal family members.  It can be assumed that the children share a close attachment relationship to each of their parents and would be experiencing some distress as a result of the separation from their mother.

1. I am not able to apply a number of the considerations, such as the consideration with respect to the opportunity the parents have taken to participate in decision-making or fulfilled the obligations to maintain the children at an interim stage, in these proceedings. 

2. In my view, the likely effect of any change in the children’s circumstances is a particularly relevant matter in the proceedings.  The effect of the orders that the mother seeks is that the children will move from the father’s household to reside with her, but will continue to see their father on each day of each weekend.  Given the father’s involvement in their lives, they may experience some difficulty in adjusting to this separation. 

3. Under the father’s proposal, the current arrangement whereby the children see virtually nothing of their mother is to continue because, as stated, the time with the mother under the father’s proposal is to be as agreed between the parties.  In these circumstances, it is difficult to see that they will reach any agreement, and if these circumstances continue, the likely distress that the children are experiencing as a result of this separation from their mother will also continue. 

4. The issue of parental capacity will obviously be considered to a greater extent at a later stage when more is known in this regard.  However, I note that the father does not suggest that he has the capacity to provide all of the children’s needs entirely, as extended family members, and in particular, his mother, have been involved in caring for the children and would continue to do so. 

Conclusion

1. The two little boys under consideration have had a dramatic change to their parenting arrangements, and, in particular, to their relationship with their mother, who, it would appear, is a significant attachment figure in their lives. 

2. There is no guarantee under the father’s proposed orders that this relationship with their mother would be supported in the future.  The mother’s orders, on the other hand, do provide for the relationship with the father to continue and there is no reason why, during the time the children spend with their father, they could not also spend time with other extended family members of significance, such as the paternal grandmother. 

3. The orders proposed by the mother also significantly give great protection to the children against harm that would inevitably be occasioned if they were to continue to be exposed to family violence, which, in my view, there is some significant risk will happen if the current arrangements continue.  Accordingly, I am of the view that the orders proposed by the mother are in the best interests of the children.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 February 2016.

Legal Associate:

Date:  2 March 2016