MELVIN & KUMAR (No.2)

[2019] FCCA 1166

FEDERAL CIRCUIT COURT OF AUSTRALIA

MELVIN & KUMAR (No.2) [2019] FCCA 1166

Catchwords:
FAMILY LAW – Parenting – best interest of the child – consent orders – psychological support and intervention – family violence – inter parental conflict – evidence – balance of probabilities – practising parental relationships – therapeutic engagement.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 61C, 69ZT, pt.VII

Evidence Act 1995 (Cth), s.140, pt. 3.2

Cases cited:

Amador & Amador (2009) 43 Fam LR 268
AMS v AIF (1999) FLC 92-852
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Benson & Hughes[1994] FamCA 30; (1994) FLC 92-483

Briginshaw v Briginshaw [1938] HCA 34
Duchess of Kingston 168 E.R. 175. S C. 1

Salah & Salah [2016] FamCAFC 100
SS v AH [2010] FamCAFC 13

Australian Psychological Society, ‘Child Wellbeing after Parental Separation’ (Position statement, July 2018). 

Applicant: MR MELVIN

Respondent: MS KUMAR

File Number: PAC 4817 of 2016

Judgment of: Judge Harman

Hearing dates: 18, 20 and 21 February 2019..

Date of Last Submission: 21 February 2019

Delivered at: Parramatta

Delivered on: 21 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Druitt

Solicitors for the Applicant: Raihani Legal

Counsel for the Respondent: Ms Mahony

Solicitors for the Respondent: Mahony Family Lawyers

Counsel for the Independent Children's Lawyer: Ms Falloun

Solicitors for the Independent Children's Lawyer: John Spence & Associates

ORDERS

1. By consent Orders are made in accordance with the Terms of Settlement executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘X’ attached hereto.

2. All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.

3. Request that all material produced to the Court on subpoena or pursuant to section 69ZW of the Family Law Act 1975 be retained by the Court for a period of 12 months.

4. Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

5. Discharge the Independent Children’s Lawyer with the Court’s thanks.

EXHIBIT X

1. That the parties have equal shared parental responsibility for the child [X] … 2013.

2. That the children [X] born … 2013 and [Y] born … 2005 shall live with the Mother.

3. That [X] shall spend time with the Father as follows:

   (a)For 6 months from the date of these Orders, every alternate weekend from 9am to 5pm on Saturday and 9am to 5pm on Sunday commencing Saturday 23 February 2019.

   (b)After 6 months from the date of these Orders, from 9am Saturday to 5pm Sunday each alternate weekend.

   (c)After 12 months from the date of these Orders, from the conclusion of school Friday to 5pm Sunday each alternate weekend.

   (d)During school terms, from 31 August 2020, from the conclusion of school Friday or 5pm to the commencement of school or 9am Monday, each alternate weekend.

4. That [X] shall spend time with the Father, during school holiday periods commencing September 2020, as follows:

   (a)During the school holiday periods, being September 2020, December/January 2020, April 2021 and June/July 2021, so as to cause the time pursuant to Order 3(d) herein to be extended until 5pm Tuesday on such Tuesdays that fall within the school holiday periods.

   (b)During the school holiday periods, being September 2021, December/January 2021, April 2022 and June/July 2022, so as to cause the time pursuant to Order 3(d) herein to be extended until 5pm Wednesday on such Wednesdays that fall within the school holiday periods.

   (c)During the school holiday periods, being September 2022, December/January 2022, April 2023 and June/July 2023, so as to cause the time pursuant to Order 3(d) herein to be extended until 5pm Thursday on such Thursdays that fall within the school holiday periods.

   (d)Thereafter and from the September holidays in 2023, for one half of all school holiday periods, being the first half in years ending in an odd number and the second half in years ending in an even number, with school holiday periods being defined as commencing at the conclusion of school on the last day of school attendance and concluding at 5pm on the last Sunday of the school holiday period.

5. That [X] shall spend time with his parents on special occasions as follows:

   (a)For Eid, should it fall prior to 31 August 2019, from 9am to 5pm on the second day of Eid with the father and otherwise with the mother for the remainder of the Eid period.

   (b)For Eid, should it fall after 31 August 2019, from 12pm on the first day of Eid to 5pm on the second day of Eid on odd numbered years and from 5pm on the second day of Eid to 5pm on the third day of Eid on even numbered years with the father and otherwise with the mother for the remainder of the Eid period. 

   (c)On Father’s Day from 9am to 5pm with the father each year.

   (d)On Mother’s Day from 9am to 5pm with the mother each year.

   (e)In the event [X]’s birthday falls on a non-school day, from 9am to 1pm with the father and from 1pm to 5pm with the mother.

6. That for the purposes of changeover, it shall occur at the child [X]’s school in the event changeover is to occur on a day of school attendance and outside of school hours at the Supermarket in Suburb A Shopping Centre.

7. That parties be permitted to attend all school events relating to [X] normally attended by parents including but not limited to parent/teacher meetings (so long as the father makes an appointment separate from the mother), school concerts, speech nights and sporting activities, unless otherwise agreed by the parents.

8. That each of the parents shall keep each other informed as soon as is reasonably practicable of:

   (a)Any serious medical problems or illness suffered by any of the children whilst in their care;

   (b)Any medication that has been prescribed for the children;

   (c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

   (d)Any other matter of significance to the welfare of the children.

9. That each of the parties are restrained from denigrating the other parent or that parent’s family or partner, in the presence or hearing of the children and each parent will remove the children forthwith from the presence or hearing of any other person engaging in denigration of the other party, their family or partner.

10. That the mother and father shall keep the other informed at all times of their email address, landline and mobile contact telephone numbers.

11. That the parties will do all things and sign all documents necessary to cause the parents and the children to participate in reportable intensive therapy with Dr B who is the single treating expert.

12. That in order to facilitate Order 11 herein:

    (a)The father shall meet the costs of the therapy.

    (b)That the parents shall do what is reasonably requested of them by Dr B.

    (c)That the Independent Children’s Lawyer have leave to provide to Dr B:

    (i)A copy of orders of the Court and any finding of the Court;

    (ii)A copy of Dr C’s Report of 6 December 2017;

13. That each parent is restrained from physically disciplining the children.

IT IS NOTED that publication of this judgment under the pseudonym Melvin & Kumar (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4817 of 2016

MR MELVIN

Applicant

And

MS KUMAR

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to parenting arrangements for two young children:

   [Y], born … 2005; and,

   [X], born … 2013.

2. [Y] will soon turn fourteen.  [X] has recently turned five.   He has, this year, commenced school.  His elder sister [Y] is in year 8.

3. The parties to the proceedings are the children’s parents, their father, Mr Melvin, the applicant, and their mother, Ms Kumar, the respondent.

4. The proceedings have an unfortunately lengthy history before the Court, through no fault of the parties. 

5. The proceedings were commenced by an Application Initiating Proceedings filed 12 October 2016.  Accordingly, the conclusion of the litigation comes some two years and four months after the commencement.  As I have indicated, this is through no fault of the parties that the delay has occurred.  The parties have done all that has been required of them in a prompt and timely fashion. 

6. The delay has arisen through an absence of resources which has not permitted the matter to be heard and determined more quickly.  If there were greater judicial resources, this matter could and, would have been heard in a far and timelier fashion.

7. The delay is particularly regrettable as one of the issues that has been manifestly clear, following five days of evidence in these proceedings, is that the delay has, with respect to [Y], facilitated a cementing of views in relation to her father and her relationship with her father.  That is a pivotal issue in the matter. 

8. It must be observed, from the outset, however, and to the great credit of the parties, their legal representatives and counsel, as well as the strident and earnest participation in these proceedings of the Independent Children’s Lawyer and counsel retained to represent the Independent Children’s Lawyer, that the matter has now been resolved. 

9. Following the completion of some five days of evidence, indeed, during the latter course of that evidence, I expressed a number of views as to the findings that were potentially available to the Court and identified those which appeared safe to make and which were readily supported by the evidence.  No particular view as to the conclusion of the proceedings was expressed, simply an outline of the findings of fact that appeared available, so that counsel would have the opportunity to speak to those issues and disabuse any ignorance or misunderstanding of the evidence. 

10. The parties have, again, to their great credit, then engaged in negotiation to achieve a resolution.  Whilst not a party to those negotiations, and appropriately so, I accept that each of the parties would have listened with great interest, indeed, at times, possibly confronted by, but certainly never, in any way, receiving with glee, the evidence of, particularly, young [Y]’s psychologist and the Part 15 expert in these proceedings, Dr C. 

11. The evidence of the psychologist and Dr C are pivotal to the determination of the proceedings and would have been significant had the matter proceeded to a determination.  I accept that the evidence of the two clinicians has been instrumental in facilitating a consensual resolution of the matter between the parties. 

12. The orders that are agreed between the parties will invest them with equal shared parental responsibility for their youngest child [X]. The orders are silent as to an allocation of parental responsibility with respect to [Y]. Thus, section 61C Family Law Act 1975 would operate and each of the parents would be responsible for making decisions with respect to major issues for [Y] at such times as she is in their respective care. 

13. That is an appropriate arrangement, I am satisfied.  As has been opined frequently, for example, by Kirby J in AMS v AIF (1999) FLC 92-852, to strip a parent of involvement in decision-making for their child is a serious step not to be lightly taken. However, it is a step that was sought to be invoked in these proceedings. I am not critical of the mother for seeking that order. It is quite clear that the parties do not communicate, have not communicated for some little time, and are unlikely to communicate significantly in the future, although that is not to suggest any lack of optimism in the therapeutic arrangements with which this family will now engage. It is simply a function of the past history and dynamic of the relationship.

14. The orders will provide for young [X] to engage in a regime whereby he will practice a relationship with his father in an increasing time arrangement and hopefully, thereby, develop his relationship with his father.  The agreed time arrangements will ultimately build to a regime that would fall within the description of substantial and significant time, albeit it with a very slow and patient graduation.  That is, again, a credit to the parties, and, particularly, in this instance, Mr Melvin, who would, no doubt, desire and relish a far more rapid increase in that practice of relationship but having, no doubt, heard all of the evidence, and having received sage advice from his legal representatives and counsel, is conscious of the interplay of the relationship between each of the children with each of their parents, and the conclusion thus drawn, if one might quote the parable from Aesop, that slow and steady wins the race.

15. In relation to [Y], there is real issue as to her present emotional or psychological functioning, as well as her ability to resume a relationship with her father.  I will turn to that issue shortly, as it is perhaps central to these reasons, which are delivered to explain the basis upon which orders are made by consent, and, perhaps, as the parties and Independent Children’s Lawyer desire, to provide some document, once the reasons are settled, to provide to the therapist to be engaged. 

16. The parties will now engage in a therapeutic process with a well-known and well-qualified therapist, Dr B.  That arises from the very direct evidence and recommendation of Dr C.  Dr C’s evidence, particularly in response to questions put by the Independent Children’s Lawyer, has been, to the effect, (and paraphrasing his evidence from my notes rather than quoting from a transcript), that, “I would prefer an approach of optimism, rather than throwing up my hands that it is all too problematic”.  That was in the context of a question put to Dr C as to whether things were, in effect, “too broken to fix”. 

17. It is common ground that, since the early part of 2016, young [Y] has not practiced any relationship with her father.  I adopt that language and will continue to use it throughout these reasons somewhat deliberately.  The evidence does not support a finding that this young lass has either no relationship, nor any desire or curiosity with respect to a relationship, with her father.  It is certainly common ground, and the evidence is not challenged, that she expresses a strong and strident desire to not engage with her father at this time.

18. Dr C was clear that a therapeutic engagement of this family, (and whilst the parties may find it a difficult proposition to accept, they are and they will always remain a family, albeit fractured and separated), will be difficult.  It will be challenging.  It is far from guaranteed of success.  It is highly dependent upon acceptance of therapeutic goals, the desire of each member of the family to achieve those goals and their commitment to, not only the therapeutic process, but support of that process and engagement with it. 

19. Dr C was clear that two therapeutic paths were possible. One being, an engagement with a supportive and educative agency and the other, an engagement, of a fairly intensive nature, with a well-qualified therapist.

20. Dr C was somewhat more pessimistic as to the first approach, indicating that he had seen it fail far more frequently than he had seen it succeed.  Accordingly, he had advanced that the best and only available therapeutic approach would be the later albeit that it would be expensive, time-consuming and plagued with potential difficulties.  However, his evidence was clear that it was something that could and should be tried, provided that the parties had the resources – emotionally, practically and financially, to engage with it.  The specifics and details of cost involved are not known.  I accept, however, that it will be a substantial impost upon these parties and, more accurately, upon the father. 

21. The process in which the parties will engage is suggested by Dr C to require a significant and intensive period of engagement, possibly involving the therapist, as described by Dr C, living with the family, or portions thereof, to seek to address resistance by young [Y], to ensure that both parents are sufficiently scaffolded or resourced to be able to support the process.  The latter is particularly important as [Y] is acknowledged to be resistant to the point that Dr C accepted that there will be significant potential “blowback” upon the mother if she does, indeed, engage and support this process, in that [Y] may then feel that her mother is not supporting her.

22. I will return to the issue of therapy shortly, suffice to observe that I am satisfied that the orders that are proposed in that regard are appropriate and supported by the evidence. 

23. I do not propose to recite the evidence in any great detail in these reasons.  Orders are made by consent.  Accordingly, the reasons can be tempered to that reality.  The evidence that is relied upon by each of the parties is set out in the case outlines filed by counsel for the parties and the Independent Children’s Lawyer.  There are a number of exhibits.  Each of the parties and various witnesses have been cross-examined, all of which would be apparent from a transcript of the five days of hearing.

24. The central issue in this case, perhaps the fulcrum upon which all has balanced, has been the determination of allegations with respect to both conflict and family violence.  Again, from the outset, I make clear that both allegations are raised in the proceedings and the issues are entirely separate.  They have some potential interconnection, but they are very different concepts and very different behaviours.  Some guidance is given by the Australian Psychological Society position paper on Child Wellbeing after Parental Separation July 2018.[1]  I make clear that that research or discussion of research contained therein is not introduced by the parties as evidence.  However, it is not relied upon or referred to for the purpose of adjudicative fact.  It is relied upon in the context of seeking to explain and give reasons for the therapeutic intervention with which the parties will now engage.  These reasons are delivered not only for the benefit of the parties, but for the therapist, to facilitate the support that is provided to the orders to which the parties submit themselves and which the Independent Children’s Lawyer recommends as being in the children’s best interests.

    [1] Australian Psychological Society, ‘Child Wellbeing after Parental Separation’ (Position statement, July 2018). 

25. The Australian Psychological Society position paper on Child Wellbeing after Parental Separation, commencing at page 9 under the heading “Inter-parental Conflict and Family Violence Pre and Post Separation” eloquently discusses the distinction between concepts of inter-parental conflict and family violence.  Accordingly, I incorporate that portion of the paper commencing at page 9 and running through to the midpoint of page 11 (footnotes omitted):

    Inter-parental conflict and family violence pre- and post-separation

    The strongest single predictors of negative child outcomes are inter-parental conflict and family violence, which have direct negative effects on child wellbeing as well as indirect effects through their impact on parenting and parent mental health(Amato, 2005; Baxter, Weston, & Qu, 2011; Kristjansson et al., 2009; Lucas et al., 2013; Sullivan, 2008). 

    Inter-parental conflict and family violence are often conflated in the parental separation research, but it is important to try to distinguish between them. Conflict is a normal part of any relationship, particularly in times of crisis. It can be reciprocal, with both parents contributing. Family violence, on the other hand, is typically one way, reflecting a power imbalance between the parties involved, where one party seeks to be feared and obeyed by threatening their partner’s personal autonomy and safety, and directly or indirectly, the safety of their children. 

    Inter-parental conflict

    In this section we focus on the effects of inter-parental conflict (noting that it is not always possible in reviewing the research literature to separate examples of high conflict from family violence because of the way the studies have been conducted). 

    Parental conflict is marked by some or all of the following inter-parent behaviours: high degrees of anger and distrust, verbal abuse and frequent or acute difficulty in communicating about and cooperating in the care of their children (McIntosh, 2003). 

    Ongoing conflict between ex-partners can negatively affect parent–child relationships and erode effective parenting, as it makes it difficult for either parent to focus on the children’s priorities (Kelly & Emery, 2003; Pedro-Carroll, 2011). These in turn contribute to children’s emotional and behavioural problems (Pedro-Carroll, 2011).    

    The research shows that: 

    ·Children from separated families report higher levels of antagonistic communication between parents before and after separation, than those from intact families (Shimkowski et al, 2012). 

    ·A large body of research documents direct and indirect effects of destructive marital and ex-spousal communication on children’s wellbeing (Cummings & Davies, 2002; Papp et al., 2002, 2009; Schrodt & Afifi, 2007), particularly forms which “triangulate” the child.

    ·Children whose parents continually denigrate one another are more likely to experience depression and anxiety compared to children of high conflict parents who do not involve their children in angry exchanges (Buchanan et al, 1991).

    ·Children who have experienced high conflict are also more likely to experience more distant parent-child relationships in young adulthood, especially with the denigrating parent (Rowen & Emery, 2014). 

    ·There are clear associations between persistent negative, hostile behaviours between parents and patterns of anxiety, depression and disruptive behaviours in childhood (Amato, 2005; Baker & Brassard; 2013; Baxter, Weston, & Qu, 2011; Grych, 2005; Kristjansson et al., 2009; Lucas et al., 2013; Sullivan, 2008); and depression, suicidal ideation and marijuana use in older adolescents (Rogers et al., 2011).

    ·Inter-parent conflict, mothers’ and fathers’ mental health and socioeconomic factors fully accounted for a twofold increase in risk of mental health difficulties among children from separated families compared to those from intact families (Lucas et al., 2013).

    ·It is also important to note that despite the difficulties of ongoing conflict with an ex-parent, many parents find ways to make their children’s needs a top priority and learn to parent effectively (Pedro-Carroll, 2011).

    Family violence 

    Family violence is not simply an increase in the frequency of conflict. It is defined as any violent, threatening or other behaviour by a person that coerces or controls a member of their family, or causes the family member to be fearful. As well as physical violence, such behaviour can also include emotional, verbal, sexual, spiritual, and economic abuse. Family violence also includes behaviours like the deliberate sabotaging of the child’s relationship with the other parent.

    The use of violence by a parent towards their partner/the other parent has significantly more potent effects on children’s adjustment than high levels of inter-parent conflict (Bancroft & Silverman, 2004; Fantuzzo & Mohr, 1999; Graham-Bermann & Edleson, 2001; Holtzworth-Munroe, Smutzler, & Sandin, 1997; Jaffe, Baker, & Cunningham, 2004; McNeal & Amato, 1998; Wolak & Finkelhor, 1998). Perpetrating violence does impact on both perpetrator’s and victim’s ability to parent.

    Behavioural, cognitive, and emotional problems that have been shown to increase with exposure to violence include aggression, conduct disorders, delinquency, truancy, school failure, anger, depression, anxiety, and low self-esteem. Interpersonal problems include poor social skills, peer rejection, problems with authority figures and parents, and lower empathy for others (McIntosh & Ralfs, 2012).

    While research has focused on the negative consequences of parental separation for children, there are circumstances where it has a beneficial effect. Research has repeatedly shown that parental separations that remove children from home environments marked by chronic discord and violence appear to result in improvements rather than decrements in wellbeing (Amato, 2000; Booth & Amato, 2001; Kitzmann & Emery, 1994; Strohschein, 2005). 

    However, the effects of family violence can continue to take their toll, even after the parents’ relationship has ended. Family violence can also worsen at the point of separation. There might be an escalation to different types of violence, such as physical violence. The controlling partner may go to great lengths to try to restore or maintain control, or to punish the partner because they are losing control over them.

1. Conflict, as defined within the research quoted above, is comprised of behaviours such as high degrees of anger and distrust, verbal abuse and frequent or acute difficulty in communicating about and cooperating in the care of children.  What is acknowledged is that inter-parental conflict, pre and post separation, negatively impacts children, including, curiously, as is readily apparent in relation to [Y]’s presentation, a predisposition to depression and anxiety. 

2. Family violence, on the other hand, has a statutory definition in section 4AB of the Family Law Act, being:

   ‘…violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.’

3. It became clear, during the cross-examination, of each of [Y]’s therapist and Dr C, that certain findings of fact with respect to conflict and family violence appeared to be supported by the evidence, and safely available at whilst others were, perhaps, not available or as safely available.  I propose to discuss the findings that would have appeared potentially available in the proceedings and which for the purpose of making orders by consent are advanced.

4. Findings of fact are the basis upon which judicial determination occurs.  The Court must do its best to determine what occurred at various points in time in the past, points of time when the Judge hearing the evidence was not present.  The Court is reliant upon the parties, witnesses and other material to do its best to determine, on the balance of probabilities, what might have occurred.  When it is not safe to make a finding on the balance of probabilities, one is not made. That is not to suggest that a party is disbelieved. 

5. I make very clear, especially for the benefit of Ms Kumar that whilst certain aspects of her evidence could not, to my satisfaction, establish a finding on the balance of probabilities, that she is not disbelieved. It is merely the manner in which the rules of evidence, such as the application of section 69ZT of the Family Law Act, allow the filtering of information so that it becomes probative evidence supporting a finding or not. 

6. Findings of fact, in civil proceedings, and as made clear by section 140 of the Evidence Act1995, are made on the balance of probabilities.  However, as made clear within that section and as discussed in Briginshaw v Briginshaw [1938] HCA 34, the balance of probabilities is not a fixed or arbitrary standard. It varies having regard to the nature of the cause of action or defence, the subject matter of the proceedings and the gravity of the matters alleged and the consequences arising from the finding.

7. As discussed by the Full Court in Amador & Amador (2009) 43 Fam LR 268:

   Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.

   The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted.

8. Certainly, in this case, there are aspects of corroboration.  Following in particular event in February 2016, the police were involved.  Statements were given.  The mother attended upon a medical practitioner and was examined and the records are tendered.  The mother has also called a number of witnesses to provide corroboration, at least to the extent of having observed on one or possibly two occasions, certain injuries to the mother and to give evidence of prior representation.  I will discuss each of those issues very briefly.  However, before doing so, I again make clear that the absence of a finding of fact, (the Full Court being clear that findings must be made with respect to specific aspects of the evidence[2] rather than a generalised approach taken towards the evidence) does not indicate disbelief of the mother.  Ms Kumar is a credible witness and I accept her as an accurate historian.  That is not to suggest that Mr Melvin is not also a credible witness and accepted as an accurate historian. 

   [2]        Salah& Salah [2016] FamCAFC 100 and SS v AH [2010] FamCAFC 13

9. There are difficulties, however, with some aspects of the evidence.  For example, disconnected from the issues of conflict and family violence, there is somewhat irreconcilable evidence that the father had little or no involvement, or at least very rare engagement, with the children and each of them at any time following their birth (see paragraph 12 of the mother’s affidavit) but then criticism of the care provided by the father to the children when they are in his substantial care (see paragraph 114).  There are other examples.  The above is simply illustrative. 

10. Inconsistencies are natural in the evidence of a party.  Parties giving evidence, in this jurisdiction are affected by stress, are affected by the vagaries of memory after the passage of many years, noting, for example, that the elder child is nearly 14 and events are related pre-dating her birth.  One would not expect any party or witness before the Court to remember with clarity what occurred 15 years ago to the extent of being able to repeat, in direct speech, conversation that occurred, where people were placed or specific dates and matters of that nature. 

11. However, there is a tendency within the evidence arising from those inconsistencies to minimise the father’s involvement and to maximise any suggestion of wrongdoing, to give a broad label to the various criticisms of the father in this case. 

12. The corroborative witnesses are similarly affected by difficulty.  Their versions of events would appear somewhat exaggerated, perhaps implausible, in light of what they allege, suggesting, for example, the father repeatedly sitting upon the mother, pinning her arms to the ground with his knees so that she could not defend herself, and punching her repeatedly to the face, when no injury, and certainly no injury which would be consistent with such behaviour is observed, the evidence being that, at best, there was the suggestion of a minor bruise to the mother’s face on, perhaps, two occasions. 

13. I do not dismiss their evidence, however. There is nothing to suggest that they have manufactured any evidence or that they have deliberately overstated or exaggerated anything that has been related by them. But it is a question of the evidence that is available. What is essentially led by corroborative witnesses are prior consistent statements which, whilst they have and are given by Part 3.2 of the Evidence Act, probative weight, must be balanced against all other evidence. 

14. Similarly, I should be clear that I do not accept that any finding of fact could be made with respect to the allegations of family violence or, indeed, child abuse alleged by the father towards the mother.  Again, that is not to suggest that Mr Melvin is necessarily disbelieved, merely that the evidence could not support a finding on the balance of probabilities, subject to the Briginshaw test, if it might be so referred to, that such events could be found to have occurred as described.  Again, there is an issue of implausibility with respect to that evidence. 

15. What I do accept and what was clearly stated to each of the child’s therapist and the Court’s expert is that young [Y], and much more so [Y] than Abu Bakar, who was very young at the time of separation of these parties, has been exposed, for a significant period of her life, to significant inter-parental conflict.  The nature of that conflict is detailed in the evidence of each of the parties and related by [Y].  One concern arises with respect to that evidence, however. 

16. It is difficult, for example, to reconcile that which is related of the child’s experience of her father during childhood with the mother’s description.  At paragraph 10 of Dr C’s report, the mother is reported as describing “[Y] enjoyed a good relationship with her father”.  The child’s own description at paragraph 75 of the same report is “for 10 years I’ve tried to run away and escape that home, that madhouse.”  It must be remembered that young [Y] was, at the time of the report interviews, not much more than 10 years of age.  The descriptions of conflict, however, are cogent, plausible, consistent and accepted. 

17. Young [Y] has been exposed to significant levels of inter-parental conflict.  Whilst it might be described, as it is, for example, in the APS material set out above, that arguments and conflicts between parents are “normal”, (whatever that descriptor may mean), and the level of conflict within this household has been substantial and significant.  There has been much yelling, arguing, screaming and derogatory comment, at times the throwing or breaking of items, and, as is conceded by the parties and each of them, at times, one or both during a particular conflict, slapping or pushing the other. 

18. The latter behaviour extends the conflict from conflict to family violence.  However, leaving that aside for one moment, to be dealt with separately in considering the issue of violence, I make clear that I accept the evidence led by each of the parties that young [Y] has been exposed to substantial and significant conflict.  What is curious, with respect to that conflict, however, is [Y]’s recollection of it.  In that quoted of [Y] above (paragraph 75 of Dr C’s report) [Y] describes the household and reaction to the household as very much more focused upon her father.  She rejects him.   

19. [Y] is described as incapable of seeing any potential for change by, or any good, within her father whereas she sees no need for change, nor any negative, with respect to her mother.  I do not suggest that she should see negatives in her mother.  However, the evidence establishes, to my satisfaction, that both parties were involved in significant inter-parental conflict, falling short, at most points, of family violence and occurring throughout the majority of the relationship. 

20. Accordingly, the child’s ardent and strident rejection of her father, her refusal to even engage in discussion regarding spending time with him, communicating with him or rekindling a relationship with him, would appear entirely disproportionate to that aspect of her lived experience in that she entirely rejects one parent but not the other who is also culpable.  That is given some meaning by Dr C who described, having been recalled following his evidence in September/October 2018, when the matter having been adjourned part-heard, that it might well be explained through the child’s need to preserve and maintain her primary and predominant care relationship with her mother, her potential to be far more forgiving of her mother, even though she has also seen her mother yell and scream at her father and perhaps even at her. 

21. The disproportionate nature of the reaction, however, is also played out in the present day.  It means that this child is suggested, as is made clear from the notes of the therapist (exhibit ICL2) to now be significantly distressed and impacted by her younger brother’s engagement in a relationship with her father.  [Y] presented to the therapist, for example, on 18 August, 2018, as highly distressed and upset about the possibility of her brother attending unsupervised visits with the father and that distress observed to continue on in appointments thereafter. 

22. That becomes an issue of some significance as the Court is required to determine the best interests of both children, not only [X].  One path that might have been suggested by the evidence, although, ultimately, I am satisfied, dispelled by Dr C and certainly by the consensus arrived at between these parents, was to make no order with respect to [Y], but to proceed to deal with and address the relationship of young [X].  However, even if that course were adopted, and I do not suggest that it is available on the evidence as it ultimately unfolded after five days of hearing, the Court would still have been required to consider the impact of [X]’s relationship upon [Y] as she remains a child subject of the proceedings.  Her best interests cannot simply be forgotten because she would not have been practising a relationship. 

23. One of the real issues that arises at conclusion of evidence is the impact of and the change in this young child through the absence of practice of relationship with her father since February 2016, a period now of three years, the time that has passed since separation.  Regrettably, in the circumstances this matter cried out to be heard and determined expeditiously, but through an absence of resources, it could not be. 

24. Throughout the entire period that these proceedings have been on foot [Y] has been engaged in a therapeutic process with a psychologist.  It is highly probable, certainly Dr C suggests that it is so and I so find, that this therapeutic engagement, without any malicious intent on the part of any person and without any suggestion of incompetence or any other criticism of the therapist, has, in and by and of itself, cemented the child’s views and increased the child’s level of anxiety associated with the father and any relationship with him.  The evidence that arises from that which is tendered from the child’s therapist and the therapist’s oral evidence, having been called on the fifth day of hearing as the Court’s witness, demonstrates the importance of care and consideration in the provision of counselling or psychological services to children post-separation. 

25. Before discussing the evidence of the therapist, I make clear that this is not intended, in any way, to be critical of the therapist or to blame the therapist for the present circumstance.  It is a complex situation which has arisen from a number of circumstances.  Similarly, I am not in any way critical of Ms Kumar for engaging this child in that service.  What is apparent, however, is that the engagement lacked clear therapeutic goals and certainly any goals that were achievable.  The goals were described by the therapist as being “to assist the child to cope with her anxiety” as opposed to address it and her worries.  Additionally, a goal was described as being “to provide support and counselling to the child due to her family situation”. 

26. Those goals lack any clear or specific focus upon the wellness of the child.  Wellness is often viewed as being the address of some pathology.  It should perhaps, in this circumstance, have been viewed as a desire to render the child well and absent anxiety and absent any difficulties which would create anxiety in the child. 

27. It was made clear by the therapist that information, in engagement with the child, having been referred by the child’s GP to receive assistance for her anxiety. Were derived solely from the child and from Ms Kumar.  Again, I am not critical of the therapist or Ms Kumar.  It is not the role of a psychologist or counsellor to seek out sources of information and most assuredly it is not the role of such therapists to become finders of fact.  Dr C was also clear in that regard. 

28. Dr C was somewhat protective of the therapist.  He certainly had criticisms to raise, which I will touch upon.  Those criticisms were on the basis that any therapeutic engagement of the nature that has occurred in this case is difficult without findings of fact having already been made to determine what intervention was appropriate and that which would best support the therapeutic intervention.  In short, Dr C described, and I accept, that a therapeutic intervention on an acceptance of some underlying pathology, whether that pathology is violence by a parent, abuse by that parent or anything else, will, by the assumption of validity and the provision of therapy to address that pathologised behaviour, make that behaviour real for the child.  The child will come to accept the assumed behaviour as real whether it ever was or not.

29. The therapist went on to indicate that she accepted all information with which she was provided as valid and correct.  That is, perhaps, an appropriate way to proceed, although criticised by counsel for the father, during cross-examination of the therapist, as being the modus operandi of a social worker rather than a therapist.  What it does create is some difficulty in accepting that which was opined, that the child is being ‘challenged’ as to her beliefs.  If the therapist has adopted and accepted the information provided as accurate and correct, then it is difficult to understand how or why the child would or could have been challenged as to the factual basis suggested to support her anxieties in relation to the father and her relationship with him. 

30. The therapist had been reluctant to breach young [Y]’s confidentiality by giving evidence.  Clinician or therapist confidentiality must, of course, as established in the Duchess of Kingston case,[3] yield to the need for the Court, as a tribunal of fact, to get to the truth and in so doing have all necessary information available.  I accept that confidentiality is a very real and important aspect of any therapeutic relationship, as regards candid engagement with a patient.  However, the therapist in furtherance of protection of confidentiality, indicated to the father that she was not prepared to meet with the father as he sought information from her, regarding his daughter, which the therapist did not feel she could release either due to the duty of confidentiality she felt she owed to the child or because of the mischief that meeting with the father might play in the child’s trust of the therapist and thus the therapeutic relationship.  I accept those bases as appropriate.  But that situation has been unhelpful in either aiding in address of the child’s anxiety, address of the child’s relationship or, ultimately, development of trust and co-operation between the parents.  Again, whilst it is not the therapist’s duty to search out sources of information and to seek to determine facts upon which therapeutic assistance is advanced, this circumstance has led the father to form the view that the child’s present therapist is somewhat partisan. 

    [3] Duchess of Kingston 168 E.R. 175. S C. 1.  More recently see Benson & Hughes[1994] FamCA 30; (1994) FLC 92-483 citing Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 66 per Gibbs CJ.

31. Dr C described that the therapist had not only accepted, for the purpose of provision of therapy, that the information provided was true, but had, herself, accepted it as true and, thus, saw herself as protective of the child.  This would appear to have occurred in all that was done by the therapist and to the extent that when communication occurred between the therapist and Dr C, after the matter had been adjourned part-heard, the therapist was clear that she would not and could not see herself involved or engaged in broaching with the child the subject of a resumption of relationship with the father or, more importantly, facilitating that reintroduction or being involved in supporting the child through such a process. 

32. That is unfortunate as it has meant that between the matter going over part-heard and the resumption of hearing, that:

    a)No progress has occurred or been attempted, even though there is no guarantee of success; and,

    b)It has been necessary to now call evidence from the therapist (in itself unhelpful to if not destructive of the treatment relationship between this young woman and her therapist) and to recall Dr C, extending the matter beyond the four days, in which it would have concluded, to now six days.  Again, the parties are not criticised for that, nor the therapist.  It is a simple reality of what was necessary to obtain the rigour of evidence required to determine what is in these child’s best interests. 

1. The lack of challenge to the child’s underlying beliefs, that which generates the child’s anxiety, is problematic. However, most importantly, as it has meant that the child’s anxiety has continued.  As I already referred to, the child’s anxiety has increased over the three years of that therapy, and particularly so since [X]’s relationship with the father has advanced from supervised time to unsupervised time, that advancement having been significantly delayed, again through, no fault of the parties. 

2. Dr C’s evidence is of real significance.  In addition to indicating his belief that optimism should be held out and one final attempt made at the very difficult exercise of therapeutic intervention, Dr C gave context to that view.  Dr C was clearly of the view that there would be ongoing disadvantage for [Y] unless a last attempt at therapy occurred.  That was on the basis, as Dr C eruditely described, of the interplay between [X]’s relationship with the father and [Y]’s rejection of it. 

3. Dr C opined, again to paraphrase his evidence without the benefit of a transcript that if there was no change in [Y]’s concreted views, that there would be ongoing adversity for [Y] as [X]’s relationship developed and progressed.  The development of that relationship would become a severe source of distress for [Y].  It would impact upon her identity.  It would lead to a self-reinforcing narrative for the child, she being fearful each time [X] left the mother’s care to spend time with the father.  There would be the difficulty of [Y] being re-traumatised, that nothing in the child’s anxious presentation would improve without change, and that her distress and, thus, anxiety would likely increase such that she would feel more defeated in her advancement if therapy was not provided even if the therapeutic outcome was determined to be nothing more than to provide support to [Y] rather than advance her relationship with respect to the father or to change her attitudes. 

4. Dr C was concerned that [Y]’s views may have developed based on some degree of misinformation.  I do not suggest that the mother or any other person has deliberately misinformed this child nor that the mother has distorted [Y]’s views deliberately or inadvertently.  It is simply a combination of circumstances - the delay, the absence of practice of relationship, the therapeutic intervention which has not assisted in addressing the child’s anxiety and may well have assisted in concreting it, and matters of that nature. 

5. Dr C was clear that three years of therapy for a child of [Y]’s age was potentially not only a long time, but too long.  Dr C indicated that whilst one could not generalise, that for this specific child, three years of therapy had, in all probability, led to the cementing of views in the child’s mind which were not necessarily responsive or entirely responsive to the child’s lived experience and past knowledge and engagement with her father. 

6. Whilst it was accepted that a ‘factual frame’ was an integral part of therapy, Dr C acknowledged the difficulties for the therapist in this circumstance, as it is not her role to be a finder of fact and, accordingly, she had proceeded with what she has been told assuming it as fact.  Dr C concluded that this history of therapy would make any attempt to challenge the underlying assumption supporting the child’s views difficult, if not impossible.  Further, Dr C opined that some of the ways in which the therapist has suggested that the child’s views have been challenged may, in fact, have done the complete opposite, to have reinforced the child’s views.  In those circumstances, it would seem that the child’s best interests, indeed, the interests of both children, must be served by a final attempt at therapeutic engagement.  That is all the more so in light of the difficulties that potentially flow for [X], lest it be perceived, that the focus is purely upon [Y]. 

7. At the time of Dr C’s observations of both of the children with their father, what is readily observed, and as Dr C spoke to, is the responsiveness of [X] to his sister and particularly when she is distressed.  Commencing at paragraph 83, Dr C describes those observations, that upon the father entering the room, [Y] became noticeably withdrawn and upset and began to cry (paragraph 84).  It is then described “[X] held his sister’s face in a concerned manner.  When the father asked [Y] about her experience, she responded she needed to go back to her mother.  [X] continued to express concern for his sister’s wellbeing, holding her face in response to her distress.” 

8. Dr C concluded his evidence by observing that not only would distress and ongoing distress and potential re-traumatising or triggering for [Y] affect her wellbeing, but it may well also affect [X]’s wellbeing and his relationship with one, if not both, of his parents.  Thus, the therapeutic intervention serves myriad purposes, not merely a desire to address the concerns [Y] raises in her relationship with her father.  It is also protective of [X].

9. Before concluding by returning to the differentiation between conflict and family violence, I make clear that there are aspects of the mother’s evidence with respect to family violence which, I am satisfied, safely support findings with respect to family violence. 

10. The mother’s evidence suggests (paragraph 23) that verbal arguments, what would fall readily within the descriptor of inter-parental conflict, commenced early in the relationship.  It is clear from all of the evidence, both that of the mother and of father, that such altercations continued throughout the relationship.  That is not to suggest that the relationship is always unhappy or is entirely defined by inter-parental conflict.  I accept the evidence of the father that this family engaged in significant social interaction with the Country D people in Sydney and Town E and that there were many family events which had a significant degree of joy for the parties and their children. 

11. The mother describes (paragraph 26) that matters moved beyond verbal altercations and that the first physical assault upon her occurred in April 2004 or thereabouts, involving slapping.  That is not to suggest that physicality is necessary to establish family violence.  But at and from that point, at the latest, it is clear that matters escalated from inter-parental conflict to violence by the father to the mother.  That may have impacted [Y]’s, somewhat black and white, apportionment of culpability to father for responsibility for all conflict and all violence.

12. The mother describes at paragraph 27, as is readily apparent from the evidence of the therapist and Dr C, that [Y] was, from a very early age, significantly upset, if not distressed, when verbal altercations occurred between the parties.  The mother describes that when the voices of adults would get louder, her distress would increase. 

13. It must be remembered that on the basis of the findings that are made, that significant and substantial inter-parental conflict has occurred throughout this child’s life.  That it is that background which must be addressed by the therapist.  It will indeed be a difficult task. 

14. The mother describes, commencing at paragraph 40, events that occurred on 12 November 2015, when she suggests that she was thrown onto a bed, held on the floor and slapped several times and grabbed about the neck.  The mother attended upon a doctor following that event, reported her concerns and corroborative material is tendered.  I accept the mother’s evidence in that regard and find that family violence occurred on that occasion as she alleges.  I hasten to add that this is not because corroboration is available, whereas it is not available with respect to the earlier allegations.  It is merely that the allegation is clear, precise and specific, rather than a generalised suggestion of events occurring, albeit with some frequency.

15. The second event that clearly can be and is the subject of a finding of family violence is that which occurred on 25 February 2016.  There were a number of aspects of concern with respect to that event.  Certainly, both parents struck each other on that occasion, at least by slapping.  I accept and prefer the evidence of the mother, as opposed to that of the father, that the first blow was struck by Mr Melvin rather than Ms Kumar.  Whether Ms Kumar was retaliatory or otherwise, she concedes that she struck the father.

16. If one were to apply, as the Best Practice Guidelines in Cases Involving Family Violence suggest, a Primary Perpetrator and Potency screening tool, the instigator or the primary perpetrator of family violence, on that occasion, was Mr Melvin.  The more concerning aspect, however, is the significant involvement of the children.  [Y] was screaming, distressed, getting between her parents and, on at least one occasion, pushed by her father.

17. She was subject to and witnessed the physical altercation as well as that which preceded and followed it – voluminous screaming, yelling and name-calling.  [X] was also present, although very young.  Reference to his age is not to suggest that exposure would not affect him.  Indeed, much research in neurobiology would suggest that a child of that age could be significantly impacted by the behaviour.  He was described by both parents as crying and upset.

18. At some point during the altercation, or perhaps immediately following it, young [Y] went to her father and spat in his face.  The versions are different as to whether the spitting preceded or followed a slap or push by the father to the child’s face.  Whether it was pushing the child’s face away or slapping the child makes little difference in the circumstances.  It was, I accept, reactive to the child’s behaviour.  The father suggests that the child was encouraged, indeed, directed by the mother to undertake that action.  I do not accept that the evidence supports a finding in that regard but it is not to disbelieve the father, merely to be confined to findings that are readily available from the evidence.

19. The above event has assumed great significance in [Y]’s mind.  She relates her recollection of the occasion to both her therapist and Dr C.  She describes it as a significant event when she describes that she was assaulted by her father, (either a push or a slap might fall within that description at law, but that is somewhat irrelevant).  It is the child’s recollection and perception, reinforced and cemented, over many years of discussing the event through therapy that is important.

20. What followed was the involvement of the police, called, it would seem, by [Y], if not also by neighbours.  The action taken by police included a number of charges preferred against Mr Melvin and, irrespective of how they were dealt with, it would seem relatively common ground that three or four charges were withdrawn and one was the subject, if not of a plea of guilty, certainly a finding that the offence was proven but without proceeding to conviction.

21. An Apprehended Domestic Violence order was also made.  It is noteworthy that both children were included as PINOPs.  Whether that was appropriate or responsive I need not be concerned.  It was the action taken by the Court and I accept it on that basis as appropriate.  I would not seek to go behind or challenge the decisions made by my hard-working colleagues in that jurisdiction.  The mother attended and required some medical assistance following that event.

22. Accordingly, whilst I have commenced by being clear that the primary finding of the Court is as to the existence of significant and substantial inter-parental conflict, specific findings are also made with respect to family violence.  It is not a case in which I could proceed on any other basis.  As the Full Court is clear, as quoted above, findings must be made to support the actions that are taken by the Court and those findings should be – indeed, must be – responsive to the evidence led.

23. I am not satisfied that findings with respect to the other allegations are safely available or necessary in the context of this determination, the making of orders by consent.  However, the above, specific findings are available and I am satisfied that it is important that they be made, both for the benefit of the therapist and for the validation of Ms Kumar.  Again, neither parent is disbelieved as to the evidence that they lead.  It is a matter of that which can be safely found and must be found for the purpose and intent of being satisfied that the proposed orders are in the children’s best interests.

24. It is for those reasons that orders are made by me as the parties and the Independent Children’s Lawyer propose.  Whilst it may appear as a somewhat unusual course to deliver a judgment, albeit briefer than would have been necessary if a detailed examination of all of the evidence had been required after a six-day hearing, it is entirely appropriate. 

25. The Court is not a rubber stamp.  The Court must be satisfied that orders are in the children’s best interests.  The Court is not obliged to consider, in detail, each and every one of the factors within Part VII of the Family Law Act (‘the Act’). I have not specifically identified any of those provisions but I am satisfied that most are addressed, certainly as regards the primary considerations and the objects of the Act in relation to the meaningful involvement and relationship of each parent and the need to protect the children from conflict, harm, neglect or abuse.

26. For those reasons, accordingly, I make orders in accordance with the minute, exhibit X signed and dated by me today, and signed by the parties and the Independent Children’s Lawyer. 

27. I otherwise remove all issues from the list of cases awaiting hearing. 

28. I request that all material produced to the Court on subpoena or pursuant to section 69ZW order be retained by the Court for a period of 12 months. I am making that order because otherwise those materials will be automatically sent back or destroyed in four weeks. Whilst I do not wish to rain upon the optimism Dr C recommends, I am conscious that the therapeutic process may or may not be successful and may or may not conclude the business of these parties with the Court.

29. I should be clear that this therapy is very much the last opportunity and, if it is unsuccessful, one would think any further litigation would be extremely unhelpful, indeed, counterproductive to [Y]’s best interests

30. It is appropriate to discharge the Independent Children’s Lawyer.  I am very conscious she will not be funded to do anything.  I am not desirous of inflicting that on the Independent Children’s Lawyer after the inordinate amount of work she has done in this matter and I am very grateful to her for doing it.  It is just a burden that is unreasonable.  I think Dr B can engage with the parties, and that will be part of her modus operandi, so to speak. 

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 6 May 2019