Malik and Malik (No 2)

[2015] FamCA 492

FAMILY COURT OF AUSTRALIA

MALIK & MALIK (NO 2) [2015] FamCA 492

FAMILY LAW – CHILDREN – Interim parenting – Best interests of the child – Where allegations of sexual harm or of emotional/psychological harm – Parental responsibility – With whom the child should live and spend time – Whether contact should be supervised – Child’s wishes

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
Malik & Malik and Anor [2012] FamCA 165
SS & AH [2010] FamCAFC 13

APPLICANT: Mr Malik

RESPONDENT: Ms Malik

INDEPENDENT CHILDREN’S LAWYER: Ms Nielson

FILE NUMBER: PAC 801 of 2010

DATE DELIVERED: 22 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 22 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gersbach

SOLICITOR FOR THE APPLICANT: Taperell Rutledge

LITIGANT IN PERSON: Ms Malik

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Nielson of Legal Aid NSW Parramatta Family Law

Orders

1. That the proceedings be transferred to the Newcastle Registry of the Family Court of Australia.

2. That the father’s application for orders that the child Y born … 2005 (“the child”) live with him is dismissed.

3. That interim orders made on 22 May 2015 continue until further order.

4. That in the event the father wishes to pursue other orders sought in his Further Further Amended Initiating Application dated 21 May 2015 he is at liberty to restore those matters to an appropriate list in the Newcastle Registry.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malik & Malik (No 2) 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 801  of 2010

Mr Malik

Applicant

And

Ms Malik

Respondent

REASONS FOR JUDGMENT

Introduction

1. In March 2012, following contested parenting and property proceedings, orders were made in relation to the child Y, the parties’ only child, who was at that time six years old. Pursuant to those orders, the parents were to share parental responsibility for the child, who was to live with her mother and spend substantial and significant defined time with her father. The mother was also restrained from relocating the child’s residence from Newcastle without the written consent of the father or further order of the court.

2. From September 2014, the child ceased spending any time with her father and in March 2015 the mother unilaterally moved her from the Newcastle area and attempted to re-enrol her in school in another state.

3. The father commenced proceedings in March 2015 seeking various orders including an interim order that the child live with him. Initially, the father’s time with the child was suspended on a short-term interim basis for the reasons given in my ex tempore judgement delivered on 20 April 2015.

4. The parties were then briefly assessed by a family consultant who carried out a Children and Parents Issues Assessment.  The family consultant also gave some additional oral evidence in the interim proceedings. Otherwise, the matter was dealt with on the untested affidavits filed by the parties.

5. On the date of the interim application further interim orders were made pending judgement providing for the child to continue to reside in Newcastle with her mother and spend supervised time with her father each Saturday for four hours. The mother seeks to have those orders continue on an interim basis until the substantive proceedings are heard. She also seeks an order that the matter be transferred to the Newcastle Registry, which is opposed by the father.

6. The father maintains his application that the child’s residence be changed and that she live with him on an interim basis and spend supervised time with her mother. The father also seeks an order on an interim basis that the child is immunised in accordance with the current national immunisation program schedule published by the Australian Department of Health and Ageing and a number of other orders. The Independent Children’s Lawyer supports the mother’s position and also seeks an order restraining the mother from moving the child from the Newcastle area and her current school.

7. The question for me to determine is whether either of these suite of orders or some other interim orders are in the child’s best interest.

Background

1. In order to determine the interim parenting application further background in relation to the matter is required.

2. The father is a medical practitioner who was born in Egypt and is now 53 years old. He was previously married and has two children from that relationship, S who is now 17 and T who is now 15. These daughters live with the father on the central coast following family law proceedings. The father also lives with his partner and his partner’s nine-year-old daughter.

3. The mother who is 50 commenced a relationship with the father in 2001. The child was born in 2005 and the parties married in 2006. They separated in January 2010. As I understand it, the mother has lived in the Newcastle area with the child since that date.

4. The first proceedings were heard in September and December 2011. Although the father says the mother made “allegations suggestive of the child being sexually abused by the father” in those proceedings, it can be seen from the Reasons for Judgment[1] that the mother ultimately did not advance an allegation that the father sexually abused the child or that he posed such a risk in the future.

   [1] Malik & Malik and Anor [2012] FamCA 165

5. Pursuant to the orders made on 23 March 2012, following that hearing, the parents were to equally share parental responsibility for the child and she was to primarily live with her mother but live for substantial and significant time with her father. During the school term the child was to live with her father each alternate weekend from Friday afternoon until the commencement of school on Monday, or Tuesday in the event of a long weekend. She was also to spend overnight time with her father each Tuesday in each alternate week and for half of the school holidays and on other special days. Each of the parties was restrained from removing the child from Australia without further order or written consent and the mother was restrained from relocating the child’s residence from Newcastle without further order or written consent of the father.

6. For reasons that are in dispute between the parties, the father ceased spending any time with the child in accordance with the orders from around Father’s Day in September 2014. There was one occasion in February 2015 when the father arranged to spend time with the child at her school.

7. Y also ceased communicating with her father on the telephone from around September 2014 other than on a few occasions. The father has been unaware for some time of the mother’s home address.

8. The father commenced these proceedings on 2 March 2015, originally seeking a Commonwealth information order and interim orders that the child live with him.

9. On 9 March 2015 the father filed a Notice of Child Abuse, Family Violence or Risk of Violence. He alleges that the mother presented the child to a sexual health clinic in December 2012. He also states in the Notice that in April 2013 and March 2014 the mother alleged that the child had a urinary tract infection and/or a sore vagina following spending time with the father. These actions are said by the father to constitute abuse.

10. On about 12 March 2015 the mother unilaterally removed the child from her school in Newcastle and appears to have taken steps to relocate to Adelaide. The child missed three weeks of school in total. On 27 March 2015, the principal of the child’s school informed the father that the mother had contacted him and told him that the child was not returning to the school and had been enrolled in another school, but refused to reveal the name of that school. In one of the affidavits relied upon by the mother, she describes this period as a time when she and the child had “run away and spent time in Adelaide”.

11. On 27 March 2015, as he had not heard from the mother for at least a number of weeks and was unaware of the child’s whereabouts, the father reported the child to police as a missing person.

12. The mother first appeared self-represented before a registrar on 7 April 2015. She was represented on 20 April 2015, but, did not reveal on either occasion that she had moved the child to Adelaide. On that later date I suspended the March 2012 orders relating to the time the father spends with the child and ordered that the parties attend an interview with a family consultant and that the mother make the child available for that interview. I also ordered that the child’s interests be represented by an Independent Children’s Lawyer.

13. The matter was next mentioned on 6 May 2015 and the only matter that was considered was the suspension of the father’s time. It appeared on that date that the parties may have been able to reach agreement as to interim orders which were made on the following day. The parties agreed that until 22 May 2015 the father’s time with the child should occur for three hours per week on the central coast and be supervised.

14. The father spent time with the child for three hours on 9, 16 and 17 May 2015. This time was supervised by a private supervision service.

15. As at the date of this interim hearing on 22 May 2015, the mother had still not disclosed her residential address.

16. Y has not been immunised as recommended by government health authorities for a child of her age. As I understand it, the mother is a naturopath and opposes vaccination.

The law

1. The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[2].

   [2] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346

2. The Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting. The objects are to ensure that the best interests of the child are met in particular ways including:

   a)ensuring that a child has the benefit of both of her parents having a meaningful involvement in her life, to the maximum extent consistent with the best interests of the child.

3. The principles underlying these objects include:

   a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives).

4. Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Framework for interim applications

1. In Deiter & Deiter[3], the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the children under consideration. This matter is in its early stages. An expert report has been ordered which is anticipated to take many months to complete. A final hearing in the matter may not occur for another 12 months, and the interim arrangements will remain for at least that period of time.

   [3] [2011] FamCAFC 82

2. Goode (supra) sets a framework for the conduct of interim proceedings.  First the Court must identify the competing proposals, identify the issues in dispute and identify the agreed or uncontested relevant facts.

3. In addition to the uncontested facts, in accordance with the decision of SS & AH[4], the Court may have some regard to the matters in dispute.  In that case, 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.

   [4] [2010] FamCAFC 13

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.

5. The mother raises a number of matters of risk with which the father takes issue.

6. It appears that the mother initially withheld the child from her father from September 2014 as she feared that the father may take the child to Egypt. However, although that appears to have been a significant concern of the mother’s at the time, she did not raise this as a matter of concern in the interim application. Having regard to the father’s profession as a health professional and having the full-time care of two teenage daughters and seeking that the child reside with him, I am of the view that it is unlikely that the father was, in September 2014, or is currently likely to remove the child from the jurisdiction.

7. Second, the mother raises issues of sexual harm.  In the Notice of Child Abuse filed by the mother, she contends that she has been informed (by an unnamed person) that there is a risk that the child has been molested. She says in that document that during periods of time when she was facilitating time with the father, the father and child slept in the same bed. She also sets out that during this time the child had regular and repeated symptoms of urinary tract infections and vaginal discomfort. The mother also says that during the period when she was facilitating the father’s time with the child, the child was regularly and frequently masturbating and “pelvic grinding”.

8. The mother contends that the child has either inappropriately witnessed sexual activity or that her behaviour is possibly a reaction to the stress at the prospect of spending time with the father.

9. In her affidavit, the mother claims that the concerns about the child’s “pelvic grinding and masturbation” have been evident since the child was at least five years old and continued up until September 2014. In her affidavit the mother does not make the connection between this behaviour and a fear that the child has been sexually harmed whilst spending time with her father. She does assert that the child has had the assistance of a psychologist in relation to this behaviour for a number of years and the mother asserts since ceasing spending time with her father in September 2014 the behaviour has settled.

10. In one of the affidavits relied upon by the mother she makes a general statement that in around September 2014 she informed the father that she “would not facilitate further time with [the child] until [her] safety issues were resolved”. She does not identify, however, what the “safety issues” are.  However, she makes general allegations that the father is psychologically manipulative, a perpetrator of domestic violence, that he “alienates everyone from each other” and is narcissistic and socio-pathic. The mother also makes a range of complaints about the father’s care of the child including inappropriate attention to health problems, that the child feels unloved in the father’s home, and that there are inappropriate nutrition and hygiene standards in the father’s care.

11. In the Memorandum prepared following the Child and Parent’s Issues Assessment, the family consultant reports that the child said she did not want to spend time with or communicate with her father because she was “scared of him”.  The child was not, however, able to identify any incident that led to her being fearful.  The child reported that her mother did not think it was safe for her to visit her father due to fears that she would be taken to Egypt and not returned.

12. The mother told the family consultant that she ceased the child’s time with the father as the child reported feeling fearful of him due to his questioning of her when they spend time together and feeling excluded and unloved by members of his household. The mother also reported the child’s sexualised behaviour which she said had occurred for approximately six years but which stopped soon after the child ceased spending time with the father in September 2014. The mother told the family consultant that she had never alleged that the father had sexually abused the child or that there was any connection between the child’s repeated urinary tract infections and sore vagina and sexual abuse but wanted these matters and the child’s masturbation behaviour examined.

13. Ultimately, it is not clear what the mother alleges is the basis for risk to the child in her father’s care.  The suggestion that there is something sexually untoward occurring while not actually alleging that the father has sexually abused the child appears to have occurred in the first hearing and again currently.

14. The father denies any sexual abuse of the child in his household and contends that taking the child to a sexual assault counsellor and repeatedly raising the issue of the child’s sexualised behaviour and urinary tract infections in the context of sexual abuse itself amounts to abuse.

15. The family consultant expressed the opinion that even from the mother’s own report there appeared to be no definite evidence of sexual abuse. She also said that masturbation can be a normal part of childhood development and was unable to determine whether the level of masturbation reported was excessive. In any event, the family consultant was of the view that a child masturbating more frequently than usual is not always an indication of sexual abuse but can be a response to stress, including parental conflict.

16. In my view, although the severity of the impact of sexual harm in the father’s household if it were proved is likely to be very significant, on the information currently available, I cannot find that there is an unacceptable risk that the child would be sexually harmed in her father’s home.

Section 60CC considerations

1. Under this section, in determining what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3).  The primary considerations, which are contained in subsection (2), 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.

2. Under the father’s proposed order as set out in his Further Further Amended Initiating Application the child would live with him and spend alternate weekends and half the school holidays with the mother. However, in the course of submissions and in the father’s Case Outline it is said that he seeks orders for the child to live with him and spend supervised time with the mother.

3. The mother’s proposal is for the child to continue to live with her and spend supervised time with the father each weekend.

4. Both the proposal set out in the father’s application and the mother’s proposal would result in the child receiving the benefit of a meaningful relationship with both of her parents.

1. So far as the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence is concerned, each of the parents make some relevant allegations but these are very much a matter of dispute. As indicated, at this stage I am unable to making findings in relation to those allegations, though I have made some limited observations in relation to risk. Each parent’s proposed orders involve the child’s time with the non-residential parent being supervised which would adequately mitigate the risk of harm suggested by each of the parents.

2. It is not in dispute, however, that the child, who is only nine, has been exposed to high level of conflict between her parents which neither of the parents address.

The Child’s views

1. Y expressed strong views to the family consultant about not wanting to see or communicate with her father. It appeared to the family consultant that the child had been exposed to some of the mother’s fears regarding her being removed from Australia which appeared in the view of the family consultant to have caused the child to have this trepidation about visiting her father. In my view, it is likely that this has affected the child’s views about seeing her father. However, given the child’s age and the strength of her views, some weight must be attached to them.

Relationships

1. At this interim stage, little is known about the relationship between the child and each of her parents, though there is no doubt that the mother has been her primary caregiver throughout her life and that the child feels safe and secure in her mother’s care. The father seems to concede that some significant damage to his relationship with the child has occurred since at least September 2014 and the reports from the supervisor of the recent time events between the father and the child indicate a very strained relationship between them.

Decision making

1. It appears that the mother has made most of the significant decisions in relation to the child. Some of these decisions such as unilaterally removing the child from school and withholding the child from her father for unspecified safety reasons have not necessarily been in her best interest.

2. It is not entirely clear why the father took so long to locate the mother or bring the matter before the Court after his time with the child ceased, though in recent months he certainly has been diligent in seeking to participate in decision making, spend time with and communicate with the child.

Obligation to maintain the child

1. So far as I can determine, each of the parents have contributed to their obligations to maintain the child.

Likely effect of change in circumstances

1. In my view, the most significant factor in this matter is the likely effect of change in the child’s circumstances if the Court were to make the orders sought by the father.  The child’s primary carer for many years has been her mother and she has been estranged for reasons which are not entirely clear from her father since September last year. The strain in the relationship appears evident in the supervisor’s reports in recent times. Moving to the father’s home would not only involve a disruption in the relationship with her mother but would involve a change of school and friendship groups. The information given by the child herself and the mother to the Family Consultant suggest that the child has had significant difficulties in peer relationships and feels unloved, whether this is justified or not, in the father’s household.  The child’s peer difficulties are also documented in her psychologist’s records produced on subpoena. A change of this kind is likely to have a profound negative effect upon the child.

2. Although the orders sought by the mother on an interim basis are not in accordance with the final orders following hearing, they would be a continuation of the parenting arrangement in the last six weeks.

3. If neither order sought by the parents were made, the child would return to spending alternate weekends and overnight in the alternate week with her father in the circumstances where she has some serious trepidation about seeing him, and where it is likely there would be significant stress to the child in seeking her cooperation with this arrangement.

Parents capacity to meet her needs

1. Although it is likely that the issue of each of the parents’ capacity to provide for the child’s needs will be a central factor in the final proceedings, at this stage, little is known about this issue and many relevant facts against which capacity would be judged are in dispute.

Lifestyle and culture, age, etc

1. It appears that the child experiences a different lifestyle and different matters of culture and tradition within each of her parents’ households. However, these are matters which, in my view, will assume greater significance in final proceedings.

Responsibilities of parenthood

1. I have some significant concerns about the responsibilities of parenthood demonstrated by the mother in her unilateral decision to move the child from the Newcastle area, especially where that was expressly prohibited in court orders. It does not reflect well upon the mother that she chose to take this action rather than make application to the court to vary orders to address her “safety concerns”.

Family violence

1. Matters of family violence raised by the mother are matters of significant dispute. There are no Apprehended Violence Orders in place and I cannot make any findings at this interim stage.

Conclusion

1. In my view, the most significant factor in this matter is the evidence that suggests that the child is currently strongly opposed to spending time with her father and feels unsafe and anxious with him. Although the cause of the anxiety is unclear, in my view the mother has not acted in the child’s best interests, particularly in removing her from Newcastle and her school contrary to Court orders. The circumstances in which the child ceased spending time with her father are also unclear. Although there does not seem to be support for the mother’s claims that the child is in some way at risk in the care of the father, the father’s proposed orders for the child to live with him could not be said to be in the child’s best interests, particularly having regard to her views, her current anxious presentation and that such orders would represent a dramatic change in her circumstances. For these reasons, the father’s application for interim parenting orders that would see the child live with him is dismissed and the current interim orders are to continue pending further order.

2. Although the father originally sought a range of other interim orders, including an order that the child be immunised this was not pursued at the interim hearing and no evidence in relation to it was produced. It is also unclear whether the father still seeks to pursue the other interim orders set out in his application. Rather than dismiss them at this stage, as it may be an oversight that they were not pursued, especially in circumstances where the main focus seemed to be on the child’s living arrangements, I do not deal with them in this application, but the father is at liberty to restore those matters to the list for further argument.

Parental Responsibility

1. In this matter the father is not seeking to change the existing order for equal shared parental responsibility while the mother is seeking sole parental responsibility. It appears that joint shared parental responsibility is currently not operating well and for the benefit of the child, and the parental relationship appears to be characterised by high levels of conflict. However, in my view, having regard to the mother’s actions in removing the child from her school and home I could not be satisfied that the mother would necessarily act in the child’s best interests if she held sole parental responsibility. Accordingly, I do not propose to alter the existing order for joint shared parental responsibility.

2. As the parents will continue to hold equal shared parental responsibility. I am required to consider an equal time or substantial and significant time parenting arrangement. Due to the high conflict between the parties, their diametrically opposed positions in this application, their inability to communicate with one another and practical issues such as the distance between their homes, it would be neither in the child’s best interests or reasonably practicable for there to be either such arrangement.

Venue

1. The last matter for me to consider is the application to transfer the proceedings to the Newcastle registry for the final hearing. This is proposed by the mother and supported by the Independent Children’s Lawyer. It is opposed by the father. The mother lives in Newcastle, as does the child and the father lives on the Central Coast where his lawyer is also located. The father submits that Parramatta is more convenient for him and his lawyers and was the location chosen by the mother to commence proceedings. He is concerned that transferring the matter to the Newcastle registry would amount to starting again and that the experience of the Independent Children’s Lawyer who has represented the child’s interests from the start would be lost, if the matter were transferred. The Independent Children’s Lawyer is of the view that it would be more appropriate to transfer the matter to Newcastle and although she has been involved in the matter since the commencement, she is of the view that on balance the matter should be transferred. The proposed expert also practices in the Central Coast and Newcastle area.

2. In my view, the balance of convenience indicates that the matter should be transferred to Newcastle, having regard to the residence of the parties and child, the location of the expert and the location of the one legal representative.

3. For the foregoing reasons I make the orders set out at the forefront of this judgment.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 22 June 2015.

Associate: 

Date:  22 June 2015