Meftah & Tamimi
[2021] FedCFamC1F 137
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Meftah & Tamimi [2021] FedCFamC1F 137
File number(s): PAC 2463 of 2020 Judgment of: HANNAM J Date of judgment: 18 October 2021 Catchwords: FAMILY LAW – CHILDREN – Interim Parenting – Review of a Registrar’s Decision – Where final orders were made in June 2020 which saw the child live with each parent on a week/week basis – Where the father withheld the child for extended periods of time following final orders being made – Where the mother re-opened proceedings following the father’s non-compliance – Where interim orders were made with the consent of the parties providing the child live with the father and spend day time only with the mother – Where following interim hearing orders were made by a Registrar which maintained that arrangement – Where the mother seeks a Review of that decision and seeks that the child live with her and spend time with the father on alternate weekends – Where the mother seeks that a Recovery Order issue if the father does not return the child to the mother’s care – Where the father seeks that the current orders are not disturbed – Where the child has made a disclosure of sexual abuse perpetrated by the mother’s partner – Where the father contends the child is at risk of sexual abuse if the child is to live with the mother – Where the father contends the risk is mitigated if the child does not spend overnight time with the mother – Where the child’s disclosure was investigated by JCPRP who found that it “had not occurred” – Where the mother contends that the father poses a risk of harm to the child due to family violence – Where the mother contends that such risk is mitigated if the child’s overnight time with the father is limited to alternate weekends and changeover to occur at day-care – Where there is a significant history of parental conflict at changeover events – Where it is unlikely that a court will be satisfied at final hearing that the sexual abuse of the child occurred – Where it is likely to be found that the father has perpetrated family violence including coercive control – Where orders are made as sought by the mother Legislation: Family Law Act 1975 (Cth) s 60CA, 60CC, 67U, 67V, 69ZW
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 14.07(1)
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (2006) FLC 93-286
SS & AH [2010] FamCAFC 13
Mazorski & Albright [2007] FamCA 520McCall & Clark [2009] FamCAFC 92
Division: Division 1 First Instance Number of paragraphs: 146 Date of hearing: 17 September 2021 Place: Sydney Counsel for the Applicant: Ms Seric Solicitor for the Applicant: Austin Giugni Martin Pty Ltd Counsel for the Respondent: Ms Kaiti Solicitor for the Respondent: Abbas Jacobs Lawyers Solicitor for the Independent Children's Lawyer: Ark Law Lawyers ORDERS
PAC 2463 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MEFTAH
Applicant
AND: MR TAMIMI
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
18 OCTOBER 2021
THE COURT ORDERS THAT:
1.Orders 1 and 4 of the interim orders made by Senior Registrar Crawford on 30 July 2021 are discharged.
PENDING FURTHER ORDER:
2.The mother is to have sole parental responsibility for X (“the child”).
3.The father shall return the child X to the mother at 4pm on Monday 18 October 2021 with changeover to occur at Suburb C Police Station, D Street, Suburb C NSW.
4.Forthwith upon the return of the child to the mother the mother’s legal representative is to notify the court by email at …@fcfcoa.gov.au.
5.In the event the child is not returned to the mother by 4pm today, pursuant to section 67U of the Family Law Act 1975, a recovery order issue directed to the Marshal of the Family Court of Australia, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of Australia requiring them to find and recover the child X born … 2017 (“the child”) and to deliver the said child to MS MEFTAH and for that purpose to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said child may be found.
6.The child is to live with the mother.
7.The child is to spend time with the father from the conclusion of the child’s day-care/school or 5pm on Friday (whichever is earlier) to the commencement of the child’s day-care/school or 9am (whichever is earlier) on the following Monday each alternate weekend commencing on 29 October 2021.
8.For the purposes of order 7 changeover is to occur as follows:
(a)The father shall collect the child at the commencement of the child’s time with the father from the child’s day-care/school, or if the child is not attending day-care/school that day, from Woolworths Suburb C; and
(b)The father shall deliver the child at the conclusion of the child’s time with the father to the child’s day-care/school, or if the child is not attending day-care/school that day, to Woolworths Suburb C.
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 the pseudonym Meftah & Tamimi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
A mother ("the mother") who is engaged in proceedings with her former partner ("the father") relating to the future parenting arrangements for the parties' only son ("the child"), seeks a review of interim parenting orders ("the orders") made by a Senior Registrar on 30 July 2021.
Rule 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 provides that such an application for review is to be heard as an original hearing.
The orders under review provide for the child to continue living with the father and to spend time with the mother during both days of each weekend but not overnight, as has been the pattern of care for some time.
The mother contends that the risks posed in the father's household are such that it is in the child's best interests to return to live with her and spend alternate weekends with the father. The Independent Children's Lawyer ("ICL") agrees with the mother's contentions and that it is proper for orders to be made as sought by the mother. The ICL also proposes additional orders in relation to changeover.
The father seeks that the mother's application for review be dismissed and that the interim parenting arrangements for the child remain as provided for under the orders made by the Senior Registrar.
BACKGROUND
The parties began living together in 2011 when the mother was aged 17 and the father was 32. They are now aged 27 and 41 respectively.
It is apparent from police records and the Magellan Report[1] that the father has two daughters from a previous relationship ("the father's daughters") who are now aged 10 and 13. Although each party makes some reference to the father's daughters being present at certain events following separation, no information has been provided to the Court by the parties about the care and living arrangements of these children during the parties' relationship.
[1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of the Department of Communities and Justice (“the Department”) with the family.
During the parties' relationship the mother worked as a health professional. The father has been unemployed since 2015 and is in receipt of Centrelink payments.
The parties' only child was born in 2017. The mother took six months maternity leave following the birth of the child and there appears to be no dispute that she was his primary carer at this time. The parties depose to differing care arrangements for the child once the mother returned to work. It is asserted by the father that he was the primary carer, while the mother submits that significant assistance in the child's care was provided by the paternal grandmother.
When the child was one year old he started attending day-care three days per week and was cared by for the father and paternal grandmother on the remaining two days while the mother was at work.
There is significant dispute about the nature of the parties' relationship and the reasons for separation with each of them making allegations of serious family violence perpetrated by the other. However, it is agreed that final separation occurred in December 2019.
It is asserted by the mother that at final separation she left the former family home with the child and began living in rented premises and that the child spent time with the father a few times per week. The father asserts that the child remained living with him and spent time with the mother. Very limited information has been provided by the parties about their domestic circumstances otherwise following separation though it is apparent that the father has remarried.
It is common ground between the parents that following separation there were several incidents which resulted in one or other of them being charged with criminal offences and Apprehended Domestic Violence Orders ("ADVO"s) being made for the protection of the other party. Requests were made by this Court that the relevant Local Court provide the files in relation to these matters. Each of the parties are defending the charges they are facing and the hearings are yet to occur.
In February 2020 the mother travelled to an overseas country for four days. During this time the child was to be attending day-care and it had been arranged by the mother that when he was not at day-care he would otherwise be cared for by a maternal aunt. Despite this arrangement, the father picked the child up from day-care and took the child to live with him where he has remained ever since. Upon the mother's return she attended the father's home to retrieve the child and an incident ensued which resulted in the mother being charged with malicious damage and an ADVO being made against her for the protection of the father ("the February 2020 incident").
Although the ADVO was not made for the protection of the child and did not restrain the mother having contact with the child, following this incident the father continued to withhold the child from the mother for a number of weeks until mid-March 2021. The father then made an application to revoke the ADVO made for his protection on the basis that the mother was "no threat" to him.
The father also asserts that an incident of family violence took place on 19 March 2020 at a community centre where the child, the father, the mother and the mother's brother ("the maternal uncle") were present ("the March 2020 incident"). The father had apparently arranged for the child to see the mother at this venue in the presence of the maternal uncle and supervised by the father, although the reason why supervision was required is not explained. The father contends that the mother was the perpetrator of family violence on this occasion.
The mother does not make any reference to this incident in any of her affidavits. Police records produced on subpoena indicate that the incident was reported to police about three months later and at that time the mother was charged with a breach of the ADVO and assaulting the father.
In April 2020 another violent incident occurred in the driveway outside the father's home ("the April 2020 incident") which ultimately led to the father being charged almost a year later with damaging the mother's property. It is alleged by the mother that in the course of transferring the child to his car seat and in the presence of the father's daughters, the father punched the window of the mother's car, shattering the glass and showering the mother and children with glass before she drove away.
Although it was the father who was ultimately charged as a result of this incident and an ADVO was made against him for the mother's protection, he again withheld the child from the mother for a period of over eight weeks from April until June 2020. During this period, the mother asserts that the father informed her they could discuss the parenting arrangements for the child if she paid him $10,000 and informed Centrelink that he was the child's full time carer.
In April 2020, during the period in which the father was withholding the child, the mother engaged solicitors who sent a letter by mail and by text message in which parenting arrangements were proposed which would see the child live with the parties on a "week about" basis and changeover occur at a police station. The father responded to the letter with an abusive and threatening text message.
In May 2020 the mother filed an Initiating Application in the Federal Circuit Court seeking urgent orders including a Recovery Order and that the child live with her and spend supervised time with the father. On a final basis, the mother sought orders for equal shared parental responsibility, that the child continue to live with her and spend alternate weekends with the father.
At a court event in June 2020 orders were made with the consent of the parties that until interim hearing the child live with the father, the parties hold equal shared parental responsibility and the mother spend time with the child each Monday, Tuesday and Wednesday from 4pm to 8pm and from each Thursday 4pm until Sunday 8pm. An ICL was also appointed on that day.
In July 2020 final orders ("the July 2020 final orders") were made in the Federal Circuit Court with the consent of the parties which provided for each parent to hold equal shared parental responsibility for the child and for him to live with each parent for alternate periods of a week with changeovers to occur on Friday nights.
The mother asserts that within a short period after the final orders were made the father requested that the day of changeover be changed and that she agreed to this request due to her fear of the father's temper and that he may again withhold the child. It is contended by the father that the mother also did not follow the July 2020 final orders and regularly left the child in his care for extended periods of time.
On 6 September 2020 the mother met a man in person for the first time who was subsequently to become her new partner ("the mother's partner"), but claims that she did not introduce the child to him at this stage.
The father deposes that sometime during the month of September 2020 the child disclosed to him that "Omou touched his willy". The father deposes that the word "Omou" is the Arabic word for "uncle" but does not identify whether this word refers to a paternal or maternal uncle. The father deposes that he was confused about the part of the body the child was referring to and that when he asked the child to point to his "willy", the child pointed to his genital region. The father asked the child who "Omou" was and began to show him pictures of various members of both parties' family but the child was unable to identify who he was referring to.
On 13 September 2020, approximately one week after the child's disclosure, the father notified the mother of it by text message. The mother informed the father by text message she did not believe the disclosure as the father had not made a report to police and had delayed in notifying her.
The following day the mother sent a message to the father informing him she would like changeover to occur in accordance with the July 2020 final orders. The father responded by sending the mother numerous abusive text messages in which he called her a "dumb bitch", "slut", "fucking abnormal bipolar bitch", "filthy human", and "dog" while continuing to demand she pay sums of money to him. The father also sent the mother almost three minutes of audio messages in which he continued to verbally abuse and threaten her in a most extreme manner. The mother annexes screenshots of these messages and a transcript of the audio recordings to her affidavit. In an affidavit in reply the father explains that these messages were sent out of "frustration".
The mother deposes that four days after the preceding interaction with the father she found the tyres on her car slashed, preventing her from going to work. The mother reported this to police but no action was taken by police due to a lack of evidence indicating a perpetrator.
The mother and her partner depose that on 19 September 2020 the child met the mother's partner for the first time in the home in which the mother was living with her sister. The mother asserts the child spent time with her partner on two further occasions in September but was never left alone with him at any time on any of these occasions. During this time the child was still spending time with each party on an equal shared "week about" basis as provided in the July 2020 final orders.
The mother's partner deposes that on 27 September 2020 a person giving the name "Mr B" contacted him to arrange a quote for business services. The mother's partner arranged a meeting with "Mr B" at a coffee shop to discuss this business opportunity. "Mr B" who attended the coffee shop with another man revealed that he was in fact the father and according to the mother's partner, allegedly threatened him to stay away from the child or he would report to police that the partner had sexually abused the child. The father further threatened that he could have beaten the mother's partner instead of meeting him publicly and warned the mother's partner against contacting police, claiming that he knew the local police. The mother later reported this incident to police but the matter does not appear to have been investigated.
Records of the mother's employer indicate that on more than one occasion in late September 2020 a person phoned the mother’s workplace and informed her managers that she was currently the subject of criminal investigations and requested that she be stood down. The mother annexes to her affidavit emails from her supervisors who took the phone calls in which they detail the information conveyed by this notifier including the mobile number from which the calls were received, which the mother identifies as the father's mobile number. The mother provided this information to police.
On 1 October 2020 the father reported the child's disclosure to police. According to police records, the father reported that the disclosure was made sometime between 10 and 12 September 2020. It is also the recorded that the father did not express great concerns about the child's welfare and that police questioned the father about his delay in reporting the matter he said he had been conducting his own investigation to assist in providing evidence to police.
On 6 October 2020 the father made a further report to police, informing them that he had a recording of the child in which the child disclosed details of the abuse and identified "Uncle [first name of mother's partner]" as the perpetrator.
On 8 October 2020 the father's complaint of sexual abuse was referred to the JCPRP[2] and the child was interviewed by members of that team the following day in the presence of the father. It is documented in police records produced on subpoena that the interview of the child only lasted for approximately 10 minutes due to the child being easily distracted, frequently leaving the interview room and police coming to a decision that no information could be obtained from him. Those records also note that at the time of the interview the father reported to a representative from NSW Health that the child's behaviour had not changed in recent times and that he declined services offered by NSW Health for the child. Officers from JCPRP also viewed the video of the child's disclosure produced by the father and observed that the father heavily led the child through the words spoken and as a result police considered the recording to be tainted.
[2] The Joint Child Protection Response Team is made up of officers from police and the Departments of Communities and Justice and Health and investigates allegations of serious child abuse.
The Magellan Report indicates that on the day of the JCPRP interview police explained to the father that due to his leading of the child in the recorded interview it could not be used as evidence. A caseworker from the Department also explained to the father that there was not enough information to indicate the child had been abused, or was at risk of abuse if he were to return to the mother's care and the father was advised of the importance of adhering to court orders.
On 9 October 2020 the mother attended the paternal grandmother's home to collect the child at the conclusion of his week with the father. The mother was told by the paternal grandmother that the father and child were not home so the mother waited in her car across the road from the paternal grandmother's home for them to return. The mother deposes that the father returned home shortly after with the child and the father's daughters who went inside the home. The father then crossed the road to the mother's car, yelled at her to leave and repeatedly banged on her car window causing the mother to call the police.
When the police arrived the mother showed them a copy of the July 2020 final orders but the father informed the police that he was not required to return the child to the mother if he believed the child was at risk. It is documented in police records that the father informed police the mother did not treat the child well, the child preferred being in his care, the mother leaves the child at childcare all day to the dissatisfaction of the child and due to these concerns he intended to deny returning the child to the mother for the week. The father also informed the police there was a current ADVO for his protection against the mother. Due to the information provided by the father, police warned the mother that she would be in breach of the ADVO if she did not move along and as a result of this the mother drove away.
In mid-October a caseworker from the Department visited the mother's home where she was staying for the purpose of a home assessment. The caseworker reported the home to be immaculate and appropriately set up for the child. No adverse issues were identified with the mother's care and the mother reported to the caseworker various allegations of abuse and family violence perpetrated by the father. The mother also explained she did not believe the child had been sexually abused and questioned the father's motivations for making such an allegation.
In early November 2020 the Department completed an assessment in relation to the allegations of sexual harm and it was concluded that those allegations were not substantiated. The child was also assessed as 'safe' with the mother and no concerns were noted about any abuse or neglect in her care. Concerns were however raised about family violence perpetrated by the father against the mother. It is noted in the Magellan Report that when assessed at this time the father was then withholding the child despite being told the outcome of the JCPRP investigation and that he was in breach of court orders.
On 3 December 2020 the mother filed an Application in a Case in the Federal Circuit Court seeking a Recovery Order. As proceedings had been finalised in July 2020 an Initiating Application should have been filed by the mother to seek such an order but it is to be noted that the mother was self-represented when she filed the application and such application was ultimately accepted by the Registry.
In December 2020 the mother appeared at a Local Court in relation to the ADVO and the criminal charges against her. Following this court event the mother attended a police station with her lawyer where she reported the April 2020 incident to police for a second time. Police records produced on subpoena are consistent with the mother's version of events as set out in her affidavit and outlined above in these Reasons. The police records further indicate that a provisional ADVO was made by police against the father for the protection of the mother and the following day the father was questioned by police and served with the ADVO.
As a result of the ADVO the father was required to surrender his firearms, any ammunition he held and his firearms' licence. On this day the father surrendered four firearms to police and upon inspection of his safe police also found a pair of knuckle dusters and an extendible baton. The father claimed not to know what the knuckle dusters were and explained that he owned the baton due to previously working in security. The father was charged with malicious damage and possession of a prohibited article or weapon.
On 1 February 2021 on the first return date before a Judge, the proceedings were transferred to the Family Court for consideration of inclusion in the Magellan protocol. There was at that stage no application for final orders that could be included in the Magellan protocol and as the outstanding application for a Recovery Order filed in December 2020 had not been dealt with and clearly had some urgency that application was remitted back to the Federal Circuit Court the following day.
On 13 February 2021 the mother filed an Amended Application in a Case where she continued to seek a Recovery Order and also sought to vary the July 2020 final orders, particularly seeking a variation of orders relating to the child's time with the father.
On 15 February 2021 the father took the child to see a clinical psychologist for an initial assessment though the particular psychological issue of concern is not clearly identified. It is recorded in the psychologist's notes for the session that the child engaged well and part way through the session stated "Omou [first name of mother's partner] touched my willy" without any prompt. Following the child's disclosure it is recorded the father became visibly upset, began to cry, shake and have an observable change in his breathing. It is then recorded that the father briefly recounted details of the legal proceedings and police involvement and requested that the psychologist prepare a brief report to present to the court about the content of the session.
On 16 February 2021 the father filed a Response to the mother's Amended Application in a Case where he also sought to vary the July 2020 final orders. In his application the father sought an order that he have sole parental responsibility for the child, that the child live with him and spend time with the mother each alternate weekend. He also sought that the mother provide an undertaking that the child will not be left alone unsupervised when in her care.
On that date an order was made at a court event in the Federal Circuit Court transferring the proceedings to the Family Court of Australia. Orders were also made at that court event with the consent of the parties ("the February 2021 orders") which facilitated the child living with the father and spending time with the mother from 11am to 7pm five days per fortnight with changeover to take place at a police station. Orders were also made prohibiting the father from taking the child to see any health professional for counselling in respect of the sexual abuse allegation and restraining the mother from allowing the child to be left in the sole care of her partner.
The mother alleges that on 27 February 2021 at a changeover event the father and his wife shouted at the mother's partner, accusing him of being a paedophile and a "son of a bitch" in the presence of the child. The mother reported this incident to police.
On 1 March 2021 the proceedings were allocated into the Magellan Program and a Magellan Report was ordered. Orders were also made pursuant to s 69ZW of the Family Law Act 1975 (Cth) ("the Act") for the Department and police to provide documents relevant to the proceedings to the Court. An Independent Children's Lawyer was also appointed on that date.
On 4 March 2021 a letter was sent by the father's legal representative to the mother's solicitor threatening that the father would withhold the child from the mother the following day unless she provided an undertaking that the child would not be left alone in the care of her partner despite such undertaking not being required by the February 2021 orders. The mother provided the requested undertaking to the father.
The mother contends that the child's time with her has proceeded in accordance with the February 2021 orders after she provided the undertaking as requested. However, she deposes to being subjected to verbal abuse perpetrated by the father's wife and one of his children on numerous changeover events. She also deposes to the child himself saying abusive and derogatory things towards her and her partner.
The Hearing
At the hearing the mother sought interim orders that the child live with her and that the father return the child to her care at a specified time and if he fails to do so that a recovery order issue. The orders sought by the mother also provide for the child to spend alternate weekends with the father with changeover to occur at the child's day-care centre to avoid the parties coming into contact with one another.
The mother contends that the father poses a risk of harm to the child but that such risk is not unacceptable if overnight time is limited to alternate weekends and changeover occurs at the child's day-care centre. The mother's principal contentions are that the risks posed by the father include exposing the child to family violence and shortcomings in his general parenting capacity including an inability to support the child's relationship with her and being unable to meet the child's needs psychologically including instilling a false narrative in the child in relation to the sexual abuse allegations. The mother contends that a Recovery Order is necessary in default of the father complying with the order to return the child as it provides her with a necessary safeguard in circumstances where the father has proven himself to have disregard for court orders. The ICL supports the mother's proposed orders in their entirety including the Recovery Order and added that such order is necessary in circumstances where a further disclosure could be made by the child and the father may once again be minded to withhold him.
The father seeks that the orders made by the Senior Registrar remain in place in their entirety. His principal contention raised at hearing is that the mother's partner poses a risk of sexual abuse to the child. It was contended on the father's behalf that this risk is mitigated by orders that the child spend no overnight time with the mother and that the mother be required to supervise the child at all times while in the presence of her partner. It was also raised on behalf of the father that in the circumstances where the child has been living with the father for a significant period of time a change of residence of the child at this interim stage may cause too much disruption to be in the child's best interests. If orders were made that the child live with the mother, the father did not consent to a Recovery Order being issued in default of orders for his return of the child to the mother. The father did indicate to the Court through his counsel that he would comply with such an order to return the child to the mother's care if such order were made.
In the course of the hearing an issue arose in relation to the practicality of the current order for equal shared parental responsibility for the child which has not been discharged from the July 2020 final orders. The mother then indicated that she also seeks an order for sole parental responsibility if the child were to live with her and that the order for equal shared parental responsibility remain if the child were to remain living with the father. The father seeks an order that he hold sole parental responsibility in relation to the child's education and that the parties hold equal shared parental responsibility for all other issues. It was contended by the ICL that where the evidence before the court shows that the parties are unable to communicate on virtually any issue an order for equal shared parental responsibility is not appropriate and as such seeks an order that sole parental responsibility fall with whichever parent the child is to live.
THE LAW & DISCUSSION
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode (2006) FLC 93-286 ("Goode").
Goode sets out a framework for the conduct of interim proceedings which involves identifying the competing proposals, identifying the issues in dispute and identifying the agreed or uncontested relevant facts.
Assessment of Risk
When considering interim orders, the Court may, and in some circumstances must, also have some regard to the matters in dispute. There is a long line of authority to the effect that a court must make an assessment of disputed facts relating to alleged risks to children.
In SS & AH [2010] FamCAFC 13 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.
The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George [2013] FamCAFC 182, a decision of the Full Court citing Deiter & Deiter [2011] FamCAFC 82 ("Deiter")).
In Deiter the Court was particularly concerned with the situation where the contested facts related to an assessment of risk. The Full Court 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.
In this application for competing interim care arrangements for the child, each of the parents raises matters of risk which each contend justify the orders that they respectively seek.
The mother contends that the risks of harm posed by the father include the harm arising from exposure to family violence and inadequacies in the father's capacity to meet the child's needs, which also give rise to potential psychological and emotional harm.
It is the father's case that the principal risk of harm to the child is present in the mother's household and that in particular, there is an unacceptable risk of harm associated with sexual abuse that may be perpetrated by the mother's partner. It is also appears that he raises some concerns about the mother engaging in family violence.
RISKS SAID TO BE POSED BY THE FATHER
Exposure to family violence
It is the mother's contention that she has been the victim of family violence at the hands of the father throughout their relationship and following separation to which the child on many occasions was exposed and that there is risk this will continue in the future.
In this regard, it is beyond dispute that the mother was 17 years of age and the father was almost twice her age (32) when they commenced a relationship, which of itself potentially gives rise to an inference of a significant power imbalance in the relationship.
The mother deposes to a long history of family violence during the relationship which includes verbal and physical abuse such as the father choking, pushing and throwing objects at her. In an affidavit where the father specifically responds to the mother's affidavit the father does not deny the mother's allegations that he was the perpetrator of family violence except to say that the mother's claim that he is intimidating is "completely false".
Apart from making these general allegations about the father's conduct when the parties' relationship was intact, the mother also deposes to a number of specific instances of family violence perpetrated by the father after separation and in particular on a number of occasions withholding the child from her. As some of the allegations made by the father against the mother arise from his version of the same events, it is convenient to set out his evidence and contentions as to those matters here also.
The February 2020 incident
As set out in the background, prior to the mother's short trip overseas in February 2020, the child was at least spending time with, or on her version of events, living with the mother. According to the mother's affidavit (and I understand that this is not in dispute), the father collected the child from childcare during the mother's absence overseas (even though she had made arrangements for her sister to care for the child) and thereafter withheld the child from the mother on the basis that she was "neglectful".
The incident which gave rise to a complaint by the father to police, which resulted in the mother being charged with malicious damage and an ADVO being made against her for the father's protection, occurred when she came to the father's home on 24 February 2020. The mother deposes that on that occasion when she arrived at the father's home she knocked on the door but heard no answer and could hear the child crying out to her from inside the house. According to her affidavit she was worried that the child had been left alone as she could not hear anyone else at home, she broke the door out of concern for the child. According to police records, the mother was charged with malicious damage for forcing a screen door open.
The father does not set out an account of this incident in either of the affidavits relied on at the interim hearing. In one affidavit he states only that he disputes the relevant paragraph in the mother's affidavit and that "evidence provided to NSW Police indicate (sic) otherwise".
The grounds of the application for the ADVO sought by police on behalf of the father indicate that at a time specified as "recently" before the incident, the father had installed CCTV cameras at his home which focused on the front door and driveway. It is recorded that the mother, consistent with her affidavit account, walked to the front door of the father's home and knocked, calling out to the child and the child can be heard calling out to her. It is also recorded that the mother asked the father to open the door and then forced it, causing the door to break open. According to police records, the father came to the front door, pushed it closed preventing the mother from entering his home and then opened it again telling the mother to "get the fuck of out of his house" whilst informing her "it's all on camera".
There are other details contained in the grounds of the ADVO application which are consistent with both the version of the mother and the father. Curiously, although there are some serious allegations it is also recorded that the father was unwilling to provide police a statement in relation to the matter as he did not want the mother charged. Court records also indicate that the father subsequently sought to have the ADVO made for his protection revoked on the basis that the mother was no threat to him.
It does not appear in dispute that following this incident the father continued to withhold the child, who was then aged only two, from the mother until around mid-March 2020.
The March 2020 incident
The next alleged incident of family violence occurred in March 2020 on an occasion when the father arranged for the child to spend time with the mother in the presence and supervision of a maternal uncle. According to the father's affidavit, the mother and maternal uncle became involved in a confrontation and the father "got in between" the two as the mother was striking the uncle with a chair and as a result the father was struck on the arm. The father deposes that in the course of this altercation he "held [the mother] back from her brother as she was trying to get at him" in an effort "to diffuse the situation" and then the mother used her head to strike the father on the nose.
Although as previously noted the mother does not depose to this incident in her affidavit, police records produced on subpoena indicate that the father reported this incident to police some three months after it occurred. According police records the father reported that when he attempted to intervene in a physical interaction between the mother and a maternal uncle he "took hold of [the mother] by the arms and pushed her back approximately two meters, where she was met by a wall". He also reported that "while [he] held [the mother] in place attempting to calm her down, she kept yelling "you're all trying to set me up" before deliberately head-butting [the father] in the nose". Police records also indicate that police offered the mother the opportunity to participate in a recorded interview, but after seeking legal advice she declined to do so.
Although this last-mentioned incident was said to have occurred on 19 March 2020, there appears to be no dispute that from around this time the father continued to permit the child to spend time with the mother even though the father later claimed to have felt threatened and intimidated by the mother as a result of her conduct. It appears that this arrangement continued until the next violent incident between the parties in April 2020.
The April 2020 Incident
There appears to be no dispute between the parties that there was a further incident between them in April 2020. According to the mother's affidavit the incident occurred just after the father had assisted her with getting the child into the baby-seat of her car where two of the father's other children were seated. As the father was walking back to his house the mother deposes that he turned around, walked to the closed driver's side window and punched it with his left hand, shattering the glass and showering her and the children with glass. The father then began verbally abusing the mother before she drove away. The mother deposes that she reported this incident to police later that day but no action was taken by the police at that time.
The father does not set out an account of this incident in either of the affidavits he relies upon in the proceedings.
As noted in the background to these Reasons, although it was the father who was ultimately charged as a result of this incident and an ADVO was later made for the mother's protection against him, he again withheld the child from the mother for a period of over eight weeks from April until June 2020. His reasons for doing are not articulated in his evidence and he does not clearly deny the mother's allegations that he told her he was only prepared to discuss the parenting arrangements for the child if she paid him $10,000 and informed Centrelink that he was the child's full-time carer. As also noted when setting out the background, the screenshots of text messages sent by the father during this period are consistent with the mother's allegations of his demands and coercive conduct towards her at the time.
From this time and in particular after the mother engaged solicitors in an effort to settle the parenting arrangements, the father sent a number of threatening and abusive text messages, a matter which he also appears not to deny.
In one of his affidavits the father deposes that during the month of April 2020 the mother breached the ADVO by physically assaulting him, which resulted, according to his affidavit, "in her facing further charges" and "caused further disruption in her seeing [the child] due to her own actions". The police and Local Court records do not reveal that the mother was charged with breaching the ADVO and assaulting him as a result of from any incident in April 2020.
According to the mother, the father's abusive and coercive conduct towards her continued after the July 2020 final orders were made and particularly escalated after the father became aware of her new relationship and that her partner had been introduced to the child. It is the mother's case that the father's allegations of sexual abuse which he came to claim was perpetrated by the mother's partner were motivated by matters other than genuine concern. This is an issue to which I will return when considering the father's contentions about the risks posed to the child in the mother's care.
When considering the mother's allegations of ongoing family violence in the context of the father's allegations of sexual abuse it suffices to say that the father claims that the child first made a disclosure about "Omou touching his willy" prior to 13 September 2020. It is the father's case that he first reported this to the mother on that date, when she reminded him the following day that she would like to "stick to the court agreement (sic)" which provided for changeover on Friday. According to the mother's affidavit she received a diatribe of extremely abusive and threatening text and voice messages from the father, which caused her to feel very scared. A transcript of audio recordings left as voice messages annexed to the mother's affidavit include the father saying things such as:
"Try me ya fucken piece of shit. I'll fucken take it all away this time. Yeah? I didn't fuck ya hard enough last time. I'm going to fuck ya harder this time. Yeah? And I'll take you, I'm going to take you to fucken court again. Yeah? Keep fucken spending your money you fucken bitch. Yeah? I fucking got….I get it all done for fucking free. Yeah? So keep spending your fucken money and fuck off…..I fucken want my money. Ya understand? Fuck it I'm not letting it go. I want my fucken money…..I'm gonna fuck ya with the fricken law ya you fucken piece of shit. Lets make that fucken clear."
The father does not deny that he sent the abusive messages or text messages but deposes that "these things were said out of frustration". He then deposes that the mother had been threatening, abusive and violent and claims that he is intimidated by her.
According to the mother's affidavit, four days after the particularly threatening voice and text messages were sent by the father she observed that two of the tyres on her car had been slashed, preventing her from going to work on that day. The mother, believing that the father was responsible, reported the matter to police but they were unable to take any action as there was no evidence of the perpetrator. In his affidavit, the father simply says that he denies the paragraph relating to this matter in the mother's affidavit.
As set out in the background, a few days after the mother introduced her partner to the child and she placed footage of the child and her partner interacting on her social media platform the father contacted the mother's partner giving a false name and arranged to meet him on a false pretext. At that meeting the father threatened the mother's partner, including threatening to report to police that he had been sexually abusing the child. Around the same time, the father also contacted the mother's workplace also using an alias and informed the mother's managers that she was being investigated for criminal charges and asked that she be stood down and threatened to speak to the media if this did not occur.
In relation to the meeting with the mother's partner, the father simply denies this paragraph in the mother's affidavit. Although he addresses each of the paragraphs in the mother's affidavit with which he does not agree, he is silent is about her allegations concerning his contact with her workplace. Curiously, this event is included in his case outline and it is claimed in that document that he met with the mother's partner due to the mother being dismissive of the child's disclosures.
Records of the workplace at which the mother was employed, including the contact number for the person who made the complaint about her (which, there is no dispute, is the father's phone number) are completely consistent with the mother's suspicion of the father's harassment of her at her workplace. Police records indicate that when subsequently interviewed, the father informed police that he had contacted the mother's place of employment and informed her manager that she was being interviewed by police.
As touched upon earlier in these Reasons, the allegation of sexual abuse of the child by the mother's partner was investigated by police in late September and early October 2020. On 8 October 2020 police and other members of the JCPRP informed the father that there was insufficient information to indicate that the child had been abused or was at a risk of abuse if he were to return to the mother's care and he was advised about the importance of adhering to court orders.
Despite the advice given by JCPRP members, on 9 October 2020 when the mother attended to collect the child after his week with the father, the father once again refused to facilitate the child's return to the mother. The father was unfortunately emboldened it would appear by police who seemed to consider that his actions were reasonable notwithstanding that other police attached to a specialised team to investigate such matters had concluded that there were no risks of harm in the mother's care and had reminded the father of the importance of complying with court orders.
Despite the fact that investigations by officers of the Department resulted in an assessment that the allegation of sexual abuse against the mother's partner was not substantiated and that there were no risks to the child in the mother's care and the police and JCPRP had closed their investigation, the father continued to withhold the child from spending time with the mother or even speaking to the mother. The mother deposes to accepting these circumstances as the ADVO proceedings against her for the protection of the father were ongoing and the next court event was to occur on 9 December 2020 and she was concerned about doing anything that could be used by the father against her in that context.
On 9 December 2020 after attending the Local Court in relation to the ADVO and criminal charges, the mother went to a police station accompanied by her lawyer and made a complaint about the father's history of violence, threats and harassment and in particular the April 2020 incident which resulted in police seeking an ADVO against the father for the mother's protection, and charging him with damaging her car.
When the mother commenced proceedings seeking a Recovery Order in December 2020 that application had not been determined in the Federal Circuit Court by February 2021 for reasons which are unclear. At that stage the child, who was only three years of age, had been withheld from the mother for four months and it was not until after a court event on 16 February 2021 that the child's time with the mother recommenced.
After time recommenced again, according to the mother's affidavit, the father's threatening conduct and similar actions by other members of the paternal family including the father's wife have continued. The mother deposes particularly to an event on 27 February 2021 when her partner was present in the car at changeover and the father and his wife shouted abuse at the partner in the presence of the child. The mother deposes that since this date her partner has not attended changeover in an effort reduce tension and the father's abusive behaviour.
The mother deposes that the father's wife conducts most of the changeovers and is regularly late. She deposes to one of the father's daughters attending changeover on 19 June 2021 and being verbally abusive and the father's wife referring to the mother as the child's babysitter and asking the child to pass a message to her. According to the mother both the father's wife and one of his daughters verbally abused her on 1 July 2021 and that each of these incidents occurred in the presence of the child. The mother also deposes to the child himself on occasions being abusive and using derogatory names towards her since time recommencing in February 2021.
The father in his affidavit refutes those paragraphs in the mother's affidavit that relate to his conduct at changeover after the child's time with the mother recommenced and curiously also refutes the paragraphs relating to his wife's conduct at changeover although he was not present. He did not rely upon any affidavit filed by his wife in the proceedings. The father alleges that the mother drove in a dangerous manner with the child in the car on 26 June 2021 following changeover. He claims to have reported this incident to police and to have received advice that police are conducting investigations into the matter although there are no police records produced on subpoena that support these contentions.
Discussion
As indicated, although I do not make any findings at this interim stage, I am required for the purposes of the interim application to make an assessment of the mother's contentions in relation to the risk posed by the father arising from her allegations that he is the perpetrator of family violence.
In my view, weighing the probability of competing claims, I consider it more likely than not on the evidence available to me that the father will be found at final hearing to have been a perpetrator of family violence when the parties' relationship was intact and following separation. In this regard, I attach weight to the following:
·It is clearly beyond dispute that the parties' relationship commenced when the mother was aged only 17 and the father at 32 was almost twice her age, which of itself potentially gives rise to an inference of a power imbalance within the relationship;
·The allegations of physical violence made by the mother when the relationship was intact include serious physical abuse such as choking. Although the father carefully and methodically addresses each paragraph of the mother's affidavit he does not deny her allegations that he was the perpetrator of physical violence of this type;
·There is no dispute between the parties that the father withheld the child from the mother on numerous occasions for many months and he has not provided any explanation in these proceedings for doing so.
·The mother also contends that the father coupled these periods of withholding the child with demands such as that she pay him large sums of money or report to Centrelink that he was the child's primary carer (with the inference that he could thereby obtain a benefit for the child). The mother's evidence as to these matters is largely uncontested and is corroborated by text messages. Such actions are likely in my view to be found by a court to amount to controlling and coercive behaviour that falls within the definition of family violence;
·Although the father claims at some paragraphs in his affidavit to be in fear of the mother, there is no dispute that he did not wish to provide police with a statement about the February 2020 incident and sought to revoke the ADVO made for his protection arising from that incident on the basis that the mother was no threat to him;
·The father did not complain about the mother's alleged conduct in the March 2020 incident until three months later. There is also no evidence to support his claim that the mother assaulted the maternal uncle on this occasion (and she was not charged with such an offence);
·The father's own version of events in the March 2020 incident given to police includes that he took hold of the mother and pushed her some distance into a wall. His reports of the mother's conduct may be found in these proceedings as actions taken in self-defence;
·It appears, for reasons which have not been explained, that the police may have taken a somewhat partisan view in the dispute between the parties arising from some of the alleged incidents including the mother's complaint about the April 2020 incident which did not result in the father being charged until December 2020 and other complaints made by her not being fully investigated. In particular, this appears to have had the effect of emboldening the father and causing the mother to limit her own complaints about the father's conduct. The mother's complaints in my view are not likely to result in positive findings in the father's favour in these family law proceedings.
Other risks alleged by the mother
In addition to the risks said to arise from the father's perpetration of family violence, the mother also raises concerns about the father's parenting capacity, his inability to support the child's relationship with her and that he is to continue to instil of a false narrative in the child about the dangers posed by the mother and her partner. Each of these matters, it is argued, add to the constellation of risk posed to the child by the father. As these matters are based on facts which are not in dispute by the parties and do not involve the court weighing the probabilities of competing claims, they will be dealt with when considering the best interests considerations.
RISKS SAID TO BE POSED BY THE MOTHER
Although at some stages in the father's evidence it appears that he raises contentions about the mother's perpetration of family violence against him, at the interim hearing the father did not run the case that the mother poses a risk to the child from which the child requires protection on the basis of her perpetration of family violence.
The entirety of the father's case at the interim hearing was based on the presence of a risk that the child may be sexually abused by the mother's partner. The father contends that this risk may appropriately be mitigated to an acceptable degree by limiting the child's time with the mother to daytime only and by maintaining the orders made by the Senior Registrar in their entirety, including an order that the mother be required to ensure the child is not left in the sole care of her partner and that she will supervise the child at all times when he is in the presence of her partner.
At one stage of final submissions made on the father's behalf it was also contended that the father would be satisfied with an undertaking given by the mother that she not permit the child to come in contact with her partner to mitigate the risk of harm posed by the partner.
The father's counsel was unable to explain the nexus between the risk of harm said to be posed by the mother's partner and overnight time and why limiting the child's time with the mother to day time would mitigate that identified risk.
The father's counsel could also not explain why given the extremely high levels of mistrust between the parties in these proceedings the father would be satisfied that the relevant risk was mitigated if the mother gave an undertaking as proposed rather than imposing a restraint on unsupervised contact between the child and the mother's partner.
In advancing the case that the mother's partner poses an unacceptable risk of harm arising from sexual abuse of the child, I understand the father's case to be that he has a genuine concern that the mother's partner abused the child at around the time the child first made a disclosure to him of such abuse and that this complaint has been subsequently repeated to a psychologist.
According to the father's affidavit, in "September 2020" without deposing to any other context the child said to him "Omou touched his willy". The father deposes to being confused about where the child was referring to and when asked to point to his "willy" the child pointed to his genital region. The father asked the child who "Omou" was and showed the child photos of members of both the maternal and paternal family in an effort it seems to have the child identify the offender but the child was unable to specify who he was referring to. The father does not provide a precise date when this disclosure was said to have been made but according to police records produced on subpoena, the father reported to police that the disclosure was made sometime between 10 and 12 September 2020.
On 13 September 2021 the father notified the mother by text message that "last week" the child had said to him "something about omou (sic) touching his willy", to which the mother responded that she was "not going to buy into any of that". In her affidavit the mother deposes that due to the father not immediately reporting the disclosure to her or police she believed that it was fabricated by the father.
As previously discussed in these Reasons, in late September 2021 the father met with the mother's partner on a false pretext. The mother and her partner both provide accounts on affidavit of this event but the father fails to provide any account in his affidavits other than to say he denies the corresponding paragraph in the mother's affidavit. Although in his affidavit the father denies that this meeting took place, the father includes the meeting in his chronology contained in his case outline and provides the short explanation that he arranged this meeting as the mother was dismissive of the child's disclosures.
According to police records, the father first reported the child's disclosure to police on 1 October 2020. On that day it was recorded by police that the father did not express great concerns about the child's welfare and that police questioned the father about his delay in reporting which the father explained by saying that he was conducting his own investigation to assist in providing evidence to police.
The father deposes that on another (undated) occasion following the initial disclosure, the child repeated the previous complaint and at that time the father showed a picture of the mother's partner to the child who then said "Omou [first name of the mother's partner]…he touched my willy".
On 6 October 2020 the father made a further report to police, informing them that he had a recording of the child in which the child disclosed details of the abuse and identified "Uncle [first name of mother's partner]" as the perpetrator.
The father does not specify when the child made the second disclosure identifying the mother's partner as the perpetrator, although he deposes that he immediately notified the mother that he did not want to return the child to her care and then reported the disclosure to police. The father annexes to his affidavit screenshots of text messages sent to the mother notifying her of the child's disclosure and informing her of his concerns that she was not taking the disclosures seriously and the child was not safe in her care.
The mother deposes that she believes the allegations of sexual abuse have been fabricated by the father and she principally relies on the timeline of events as outlined in her affidavit to support her position. In particular, the mother deposes that she first met her partner in person on 6 September 2020 and the child met her partner for the first time on 19 September, several days after the first disclosure was made by the child (reported by the father to have taken place sometime between 10 and 12 September 2021). The mother also explains that the child spent time with her partner on two further occasions before the second disclosure but deposes that on all three occasions the child was not left alone with her partner and her partner did not assist with bathing the child, changing the child's nappy, toileting the child or changing his clothes. The mother also relies on an affidavit filed by her partner in these proceedings in which he specifically denies the allegations.
Discussion
Weighing the probabilities of the father's allegation of sexual abuse by the mother's partner against his denial, I am of the view that it is unlikely that a court at final hearing will be satisfied that the sexual abuse occurred. In forming this view I attach weight to the following matters:
·The father's vague and varying statements about when the child first made any disclosure that "Omou touched my willy";
·The father's text message interchange with the mother on 13 September 2020 indicating that the father himself did not regard this as a matter of significance at the time;
·The evidence of the mother and her partner that the child met the mother's partner for the first time on 19 September 2020 after the child's first disclosure on any of the dates indicated in the father's evidence;
·The father contacting the mother's partner on the same day that the mother posted a video to her social media account of the child in the presence of her partner under a pseudonym and on the pretext of arranging a business meeting;
·The evidence of the mother's partner that the father threatened him on 30 September 2020 that if he did not stay away from the child that the father would report that the mother's partner had sexually abused the child;
·The father took a number of weeks to contact police and report the child's disclosure and that he did so the day after meeting with and threatening the mother's partner;
·The father taking it upon himself to investigate the child's complaint of being sexually touched which included making a recording of the child in which he asked a number of leading questions implicating the mother's partner;
·The assessment of Police that the recording made by the father of the child's disclosure was tainted and for this reason was of little evidentiary value;
·When the child was interviewed by police he declined to make any disclosure and the child's demeanour during that interview. The child was described by police as confident, playful and verbally advanced for his age and that there was no evidence of him being distressed when being questioned about being allegedly touched on the penis;
·The assessment of the JCPRP, being a specialist team responsible for investigations and assessments of allegations of sexual abuse, that the alleged abuse "has not occurred";
·The mother's partner has provided affidavit evidence denying the allegations;
·The mother's partner was cooperative with caseworkers from the Department during the home visit;
·The further disclosure made to the psychologist in February 2021 is in my view likely to be found unreliable. In particular, at that time the child had not spent any time or had any contact with the mother for over four months but this disclosure was said to be spontaneous and unprompted. It is also to be remembered in this context that the father had in the view of police heavily lead the child when he recorded a conversation with him in October 2020.
·I consider that no weight will be attached to the psychologist's record of the father's reaction to the child's disclosure in the course of that session as indicative of his surprise or shock about the child's disclosure. The father was well aware of the content of that disclosure and had been suggestive and leading in relation to it four months previously.
For all of the foregoing reasons I consider it unlikely that a positive finding will be made by a court in the event of a final hearing about this allegation. I also have concerns about whether the father's concerns in this regard are genuine. In my view, if the father honestly believed that the mother's partner had sexually abused the child or posed an unacceptable risk of harm to him and that the mother herself posed a risk of harm as she failed to act protectively, he would not be proposing any arrangement whereby the child spends quite extensive time with the mother or that he would be satisfied with an undertaking alone from the mother that she would not bring the child alone in contact with her partner to mitigate such a risk.
THE COMPETING APPLICATIONS
In applying the law to the facts, the Court must uphold the relevant Objects and Principles in the part of the Act dealing with parenting.
Pursuant to s 65D(1), subject to certain sections which do not apply, a court may make such parenting order as it thinks proper.
Section 61DA provides that 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 of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or another child in the family or family violence. Further, when making interim orders the presumption applies unless the court considers that it would not be appropriate. There are in my view for the reasons given reasonable grounds to believe that the father has engaged in family violence so the presumption does not apply.
In the event that orders are made as sought by the mother that the child live with her and spend defined time with the father she also seeks an order that she have sole parental responsibility for the child. In the event that orders are made for the child to live with the father, the mother seeks an order for equal shared parental responsibility for the child. The ICL contends that is in the child's best interests that an order for sole parental responsibility be exercised by whichever parent the child lives with. The father seeks sole parental responsibility for education if the child is to live with him and that parental responsibility otherwise be shared equally between the parties.
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.
The best interests of the child are determined as a result of consideration of the matters set out in s 60CC.
The primary considerations, which are contained in s 60CC(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.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of "meaningful relationship" is not defined in the Act, it has been interpreted as meaning a relationship which is "important" or "significant"[3]. Each of the proposals of the parties would see the child live with one parent and spend defined time with the other that would foster the child having a meaningful relationship with the parent with whom he is not living. The parties must be taken to accept that the child does receive a benefit from having a meaningful relationship with each parent.
[3] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
In the circumstances of this case the most salient matter to which each of the parties ask that I attach weight is the need to protect the child from harm arising from abuse, neglect or family violence.
For the reasons given when discussing each of the parties' respective contentions, I am of the view that there is a particular need to protect the child from the harm that arises from his exposure to family violence which I consider likely to be found to have been perpetrated by the father against the mother throughout the relationship and following separation and to which the child has been exposed.
The mother did not advance the case that the need to protect the child from harm of this nature requires that the father's time with the child be supervised or that the child spend no time with the father. Rather, it appears to have been accepted by the mother that the proper way to reduce the child's exposure to family violence is to reduce the need for the parents to come in to direct contact with one another by making orders that changeover occur at childcare and by making an order for sole parental responsibility to be allocated to the mother.
For the reasons given, I do not consider that the mother or her partner pose an unacceptable risk of harm if the child were to live with her arising from the mother's alleged failure to protect the child from sexual abuse by her partner and in any event would not consider it proper for such orders to be made as proposed by the father if such risk were found to be present.
Although at various times it appears that the father contended that the mother had neglected the child, this was not contended on his behalf at the interim hearing.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this case. Those considerations which are relevant and applicable are as follows.
The child aged four, has not expressed his view in any manner to which weight may be attached. He is yet to be interviewed and assessed by a family consultant.
There is also currently no available expert evidence in relation to the nature of the child's relationships with each of his parents and others. It can be assumed however given the age at which the parents separated and some common ground between them about the pattern of the child's parenting arrangements following separation, that the child has important relationships with each of his parents from which he receives a benefit. These relationships will be fostered by both parents' proposals.
The father's application that would see the current arrangements remain in place will not bring about any change in the circumstances for the child that have been in place for at least six months.
The proposal of the mother, which would see the child move to live with her, will involve quite a significant change in the child's circumstances and some separation from the father. In submissions made on his behalf, the father attaches particular weight to this consideration and contends that it is in the child's best interests for the current circumstances of his care which have been in place for some time to continue for the child's benefit.
In submissions made on her behalf the mother also attaches weight to this matter. When this matter is considered, together with shortcomings in the father's capacity to meet the child's needs it is contended that a change in the child's circumstances which will see a return to the mother's primary care and a reduction in the child's time with the father will be of benefit to the child.
I attach weight to and accept the submissions made on the mother's behalf about the likely detrimental impact upon the child of the various significant disruptions in the child's relationship with the mother which occurred when the father withheld the child from her. The father's actions in this regard, especially when combined with his attempts to coerce and control the mother to give money to him through this withholding reflects very poorly in my view upon the father's attitude to the child and to the responsibilities of parenthood (in prioritising his own needs above those of the child) as well as demonstrating the father's poor insight into the psychological and emotional needs of the child.
There are no particular practical difficulties involved in the child spending time with the father as proposed by the mother except that her proposal for changeover will require some travel by the father at the commencement and completion of the child's time with him. However, it is proper and necessary in my view to ensure that changeovers occur without the parties coming into direct contact with one another to protect the child from harm from exposure to conflict between his parents.
THE RECOVERY ORDER
Section 67U of the Act provides that subject to section 67V the Court may make such Recovery Order as it thinks proper. Section 67V provides that, in deciding whether to make a Recovery Order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The mother seeks an order that in the event that the child is to live with her that the father be required to deliver the child to her by a specified time. She also proposes that in the event the father fails to deliver the child to her that a Recovery Order be made to ensure that the child returns to her care. The ICL agrees that such orders including a Recovery Order are in the child's best interests.
The father opposes a Recovery Order being made and submits that the Court can have confidence that he will comply with any order made requiring him to return the child to the mother's care.
The principal matter relied upon by the mother in seeking a Recovery Order is the pattern of the father withholding the child from her to suit his own purposes on numerous occasions in the past and as on each occasion it has been the mother who has been required to institute proceedings to ensure that the child does receive the befit of maintaining a relationship with her.
I am of the view that weight should be attached to the father's conduct in the past and in particular as he has withheld the child from the mother for lengthy periods of time on three occasions including contrary to orders. I also consider it significant that the father appears to have been able to convince the police about the appropriateness of his actions when the mother has sought police assistance. In my view, there is real risk that the father will not comply with an order for the return of the child and for this reason I consider it is proper that a Recovery Order issue in the event that the father defaults. A Recovery Order will remain operative for 12 months and is likely to also assist the mother in the future if there are any other occasions on which the father withholds the child contrary to court orders.
CONCLUSION
Having regard to each of the best interests considerations as discussed and attaching particular weight to the need to protect the child from family violence, identified inadequacies in the father's capacity to meet the emotional and psychological needs of the child and the other matters referred to, I consider it proper to make all of the orders as proposed by the mother as I am of the view that those orders are in the best interests of the child.
For the foregoing reasons, I make the orders set out at the forefront of these Reasons.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 18 October 2021
0
4
0