Mortensen and Millan
[2018] FCCA 904
•27 April 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORTENSEN & MILLAN | [2018] FCCA 904 |
| Catchwords: FAMILY LAW – Parenting application for two children aged nine and seven – parental responsibility – the time the father spends with the children and should the time be supervised – cultural issues – parents from a (nationality omitted) background – best interests of the children. |
| Legislation: Family Law Act 1975, ss.60CC, 60CA, 60B, 61DA, 65 DAA, 68B |
| Cases cited: Moose & Moose [2008] FamCAFC 108 |
| Applicant: | MS MORTENSEN |
| Respondent: | MR MILLAN |
| File Number: | NCC 1647 of 2012 |
| Judgment of: | Judge Costigan |
| Hearing date: | 8 February 2018 |
| Date of Last Submission: | 9 February 2018 |
| Delivered at: | Newcastle |
| Delivered on: | 27 April 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Mueller |
| Solicitors for the Applicant: | Jennifer Blundell & Associates |
| Solicitors for the Respondent: | Self-Represented |
ORDERS
That all previous parenting orders be discharged.
That the mother have sole parental responsibility for the children [X] born 2009 and [Y] born 2011 (‘the children’).
That the children live with the mother.
That the children spend time with the father :
(a)On the last Saturday of each calendar month from 10am until 4pm;
(b)On Father’s Day from 10am to 4pm;
(c)On Christmas Day from 10am to 4pm; and
(d)At any other times and on any other conditions as the parties may agree from time to time.
That the children be delivered to and returned at the end of each contact period to a contact centre or a venue nominated by the mother.
The mother shall keep the father informed of the names and contact details of any medical practitioner treating the children, and contact the father as soon as practicable upon the happening of any of the following:
(a)The children or either of them becoming seriously ill;
(b)The children or either of them becoming hospitalised;
(c)The children or either of them being involved in an accident; and
(d)The children or either of them becoming involved in any event to which police or any other emergency services are called.
The father is authorised (and a copy of these orders shall be sufficient authority):
(a)To receive such notices newsletters, photographs, reports and other document or information normally provided to parents from any school which the children may attend from time to time; and
(b)To receive such medical reports, test result medical notes and other similar documents normally provided to parents from any medical practitioner which the children may attend from time to time.
Each party is restrained from:
(a)denigrating the other or any member of their family in front of or in the presence of the children, or permitting any other person to do so;
(b)discussing with the children parental issues, court proceedings and/or questioning the children with respect to the other parent’s personal affairs; and
(c)bringing the children or either of them into contact with Mr E.
Subject to Order 10 below the mother is permitted to take the children out of Australia for holidays and for other short periods of time. In relation to taking the children out of Australia the mother will:
(a)give the father as much notification as possible of the intention to take the children out of Australia and in any event will not give less than 60 days written notice of such intention; and
(b)give the father an accurate itinerary to include departure and return dates on which they will arrive and depart each country and a telephone number and address at which the children can be contacted.
The Mother is authorised to take all steps and sign all documents necessary to procure valid passports for the children and each of them.
Except with the written consent of the father or leave of the Court the mother must not cause or permit either of the children to travel to (country omitted) until the child [Y] attains the age of 12 years (2023).
IT IS NOTED that publication of this judgment under the pseudonym Mortensen & Millan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1647 of 2012
| MS MORTENSEN |
Applicant
And
| MR MILLAN |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings concerning the parenting arrangements for the children [X] born 2009 (‘[X]’) and currently aged 9 years and [Y] born 2011 (‘[Y]’) and currently aged 7 years.
This is a difficult matter largely because of the cultural backgrounds of the parties and the dissonance in their respective interpretations of customary traditions. Both parents were born in (country omitted).
The father Mr Millan (‘the father’) is from the (nationality omitted) ethnic group in (country omitted). He came to Australia in 2004 with his two (2) children from his first marriage, his wife Ms B had died in (country omitted) in 2001.
The mother Ms Mortensen (‘the mother’) provided the following background information to the family consultant:
‘The mother was born and raised in a small village in (country omitted) close to the (country omitted) border. Her father died when she was aged two years. She had an older sister die when the mother was aged one year. She had an older brother die in 2014. She has a sister, (name omitted) and a sister, (name omitted), who both live in (country omitted). Her mother continues to live in (country omitted)……….the mother was educated to the equivalent of year eleven.’[1]
[1] Family Report, paragraph 45
In 2007 the father returned to (country omitted) to meet with the mother with a view to marriage. At this time the father was 48 and the mother 25. The parties and their respective families agreed to the marriage and the ceremony took place in (country omitted) on 2007 and a dowry of livestock and money was paid to the mother’s family.
The father returned to Australia a few weeks later. He says:
‘I travelled without Ms Mortensen, with a view to setting up house and becoming established in employment before Ms Mortensen was to join me’.[2]
[2] Father’s affidavit filed 8 December 2016, paragraph 9
The mother moved to (country omitted) as internet communication was better there which enabled her to apply for a spousal visa to come to Australia. Her application was eventually granted and she arrived in Australia in 2008 to live in (suburb omitted) with the father and Mr E who was then 14 years old.
The parties’ first child [X] was born on 2009 and their second child [Y] was born on 2011.
The parties separated on August 2011. The mother and children stayed at a women’s domestic violence shelter and thereafter moved to rented accommodation in (suburb omitted) provided by the domestic violence service.
On 13 September 2011 an apprehended violence order was made at Newcastle Local Court, with the father as the defendant and the mother being the person in need of protection for a period of 12 months in terms of the standard order 1 (a), (b) and (c).
On 21 June 2012 the mother filed an initiating application in the Newcastle Registry of the Federal Circuit Court.
In late 2013 the mother and children moved to their current accommodation in (suburb omitted).
On 17 September 2012 the parties and the children attended a child dispute conference with family consultant Mr D. Unfortunately, the (language omitted) interpreter did not arrive and the conference was abandoned without the mother being interviewed.
On 7 November 2013 final orders were made by consent that provided, inter alia, for the parents, the children to live primarily with the mother and spend time with the father on alternate weekends, half school holidays and culturally specific occasions.
On 20 November 2014 the mother travelled to (country omitted) for the funeral of her brother and the children stayed with the father for that six (6) week period.
In February 2015 the father travelled to (country omitted) for one month and the children remained in the care of the mother.
In mid-2015 the mother commenced a new relationship.
In 2015 the mother learns that she is pregnant and her relationship comes to an end. The mother’s daughter [A] was born on 2016 and she is now aged 22 months old. She is not a subject child of these proceedings but the circumstances of her birth are a significant source of conflict in this matter.
The parties divorce on 7 November 2015.
On 3 May 2016 the parties attempted mediation but it did not proceed and a section 60I certificate was issued.
On 19 August 2016 the mother commenced these proceedings by way of an initiating application.
The father filed his response on 8 December 2016.
On 16 December 2016 orders were made for the preparation of a family report and the matter adjourned to 22 June 2016.
Family report interviews were scheduled for 26 April 2016.
On 29 March 2016 the solicitor for the father advised the Court that the father would not be attending the scheduled family report interviews as the process was inconsistent with his cultural beliefs.
In 2017 the father travelled to (country omitted) for a number of weeks.
On 24 October 2017 orders were made in chambers listed for matter for final hearing for two (2) days commencing 8 February 2018.
On the morning of the hearing there were a number of teething problems. The solicitor for the mother had previously filed a Notice of Withdrawal on 20 December 2017. The mother belatedly received a grant of legal aid a week prior to the hearing and the mother’s solicitor filed a fresh Notice of Address for Service on the morning of the hearing.
The father who was self-represented (his solicitor having filed a Notice of Withdrawal on 30 January 2018) refused to accept service of any documents from the mother’s solicitor on the basis that he understood she was no longer acting for the mother and because he felt she was rude to him.
The father had filed his trial affidavit on 30 January 2018 but did not serve a copy on the mother or the mother’s solicitor.
The mother filed her Case Outline in Court on the morning of the hearing and also provided a copy to the father. The father did not file a Case Outline.
The matter was fixed for final hearing for two (2) days commencing 8 February 2018.
The mother was represented by Mr Mueller of Counsel.
The father was self-represented. In accordance with Johnson & Johnson (2000) 201 CLR 488 and Re F Litigants In Person Guidelines [2001] FamCA 348, the court process was explained to the father. He was provided with copy of the relevant sections of the Family Law Act (Cth) specifically 60CC, 61DA and 65DAA in order to assist him in preparation for cross-examination and submissions. Subpoenaed material was made available to him over the luncheon adjournment though the documents produced under subpoena were not extensive.
The father, the mother and the family report writer gave evidence and were cross-examined.
At the conclusion of evidence and submissions the Court reserved its decision.
Competing Applications
The mother sought final orders in accordance with her amended initiating application as follows:
1. That the children [X] born 2009 and [Y] born 2011 live with the mother.
2. That the mother have sole parental responsibility for the children.
a.The children shall spend time with the father as agreed but failing agreement for two (2) hours each calendar month, which time shall be supervised by a person known to the children or contact centre or professional supervisor as elected by the mother and to facilitate this order each party shall:
i.Contact the contact centre (if using a contact centre or professional service) within 7 days of these orders and arrange for an appointment for assessment for suitability for supervision of the time the children spend with the father;
ii.Attend the assessment;
iii.Comply with any appointments made by the contact centre for supervised time;
iv.Comply with all reasonable rules of the contact centre; and
v.Comply with all reasonable requests or directions of the contact centre.
b.If the contact centre or supervisor accepted by the parties is only available at times less regular than those specified in order 2 above, then contact shall occur at such times as are offered by the contact centre or supervisor.
c.The mother or her nominee shall cause the children to be delivered to and collected from the contact centre or supervisor or person, and upon delivery shall promptly leave the vicinity.
d.The parties will each pay half of the costs of supervision.
3. In the event that the father fails to attend three consecutive occasions of supervised time as offered by the contact centre or supervisor, or person then order 2 above is discharged, and the father shall spend supervised time with the children on four (occasions) per year at such times and placed as specified by the mother.
4. The father is prohibited by injunction from attending at any school or after school care service the children may from time to time be enrolled at, any holiday care service the child may from time to time be enrolled at any extra-curricular activity the child may from time to time be engaged in.
5. That father may send cards and gifts to the children at Christmas, Easter and on their respective birthdays, and the mother shall ensure that each child receive those cards and gifts.
6. The father is to pay the children’s school fees for the duration of the children’s enrolment at School A.
7. The mother shall keep the father informed of the names and contact details of any medical practitioner treating the children, and contact the father as soon as practicable upon the happening of any of the following:
(a)The child becoming seriously ill;
(b)The child becoming hospitalised;
(c)The child being involved in an accident;and
(d)The children become involved in any event to which police or any other emergency services are called.
8. The father is authorised (and a copy of these orders shall be sufficient authority);
(a)To receive such notices newsletters, photographs, reports and other document or information normally provided to parents from any school which the children may attend from time to time;
(b)To receive such medical reports, test result medical notes and other similar documents normally provided to parents from any medical practitioner which the children may attend from time to time.
9. Each party is restrained from denigrating the other or any member of their family in front of or in the presence of the children, or permitting any other person to do so.
The mother says she continues to have concerns in relation to the father’s violence and abusive and controlling behaviour towards her. She says she feels isolated within the local (nationality omitted) community because of the father’s influence within that community and that he will continue to denigrate her to the children and the local community. She remains concerned that the father will use every opportunity to denigrate her including at changeovers and at the school.
In summary, she says that there is an unacceptable risk of harm to the child for any unsupervised contact with the father. The Court did not understand the mother’s case to be that [X] and [Y] did not have a meaningful relationship with the father. Rather that the best interests of the children would be served by on-going supervised contact in the event the parties were unable to agree upon parenting arrangements.
The father sought final orders in accordance with his response as follows:
1.Equal shared parental responsibility for the children.
2.That the children live with the father.;
3.That the children spend time with the mother:
(a)During school terms, each alternate weekend from after school pm Friday until before school on Monday;
(b)During school holidays, for half of the school holiday period on week about basis; and
(c)Various orders for special occasions.
4. That the father pays the school fees of the children.
5. Orders facilitating care of the children for international travel of either party.
6. That both parties are restrained from removing the children from the Commonwealth of Australia until such time as both children have reached 16 years of age.
However, at the commencement of proceedings the father informed the Court that he wanted the final orders made on 7 November 2013 to be reinstated. Those orders provided for:
· Equal shared parental responsibility;
· The children to live with the mother; and
· The children to spend time with the father for alternate weekends, half school holidays and culturally appropriate special occasions.
He sought further orders that in the event that if the mother re-partnered the children should live with him and spend time with the mother on alternate weekends, half school holidays and culturally appropriate occasions.
The father told the Court that his position was informed by his belief and interpretation of (nationality omitted) Customary Law that the children are not and would not be safe in the care of any man other than himself, save for a man from the mother’s immediate family.
He disputed that the contact between the parties has been at all difficult and said on more than one occasion in the course of these proceedings that there was no dispute at all from his perspective. At one point he said:
‘We are not in dispute. The dispute is they say I should consider a child born somewhere to be my child. That’s the point only.’
However, at other times he conceded that the communication between them may have been poor but that was entirely the fault of the mother.
The father indicated that he recognised the authority of this Court. The mother was not convinced of this saying in her trial affidavit:
‘Mr Millan continues to refuse to accept the laws of Australia regarding parenting orders and domestic violence.’[3]
[3] Mother’s affidavit29 November 2017, paragraph 44
Based on his affidavit material, his refusal to participate in the family report interviews and various comments he made in the course of the hearing, it is my assessment that the father does not accept that this Court has authority to make orders in relation to his marriage or his children.
It was apparent from the totality of the evidence the father’s holds his views on the primacy of customary traditions and law with great passion. There is, therefore, some basis for the mother’s fear that the father may not comply with the orders made by this Court.
Issues:
This issues to be determined are:
· The allocation of parental responsibility;
· Where the children should live;
· The time the children should spend with the other parent and the frequency and circumstances of that time;
· Whether there are any risks of harm for the children in the household of either parent.
Mother’s Evidence:
The mother relied on the following documents at the final hearing:
· Her Amended Initiating Application filed 14 November 2016;
· Her Notice of Risk filed 19 August 2016;
· Her affidavit filed 29 November 2018;
· Child Inclusive Conference Memorandum dated 17 September 2012;
· Child Inclusive Conference Memorandum dated 31 October 2016;
· Family Report dated 28 April 2017; and
· Outline of Case filed in Court and dated 7 February 2018 (Exhibit A)
The mother also tendered the following documents:
· Apprehended Domestic Violence Order dated 13 September 2011 and made at Newcastle Local Court (Exhibit B);
· Documents produced under subpoena by NSW Police – green tag M7 (Exhibit C), M3 (Exhibit D), M4 (Exhibit E), M5 (Exhibit F), M6 (Exhibit G), M8 (Exhibit H), M9 (Exhibit I), M10 (Exhibit J), and M11 & M12 (Exhibit K).
The mother currently lives in (suburb omitted), in a three (3) bedroom unit rented through Housing NSW. She has maintained that accommodation since 2013.
The mother says that shortly after she arrived in Australia to live with the father and since separation he has attempted to exert control over her. She said that when she first arrived in Australia she commenced English studies at TAFE. She suspended those studies when she fell pregnant with the parties’ first child [X], but after the birth she was met with opposition by the father when she tried to resume those studies. She says that the father went to the child care centre and argued with the workers and the centre and she had to withdraw [X] from the centre.
She says that the father insisted that she remain at home. For example she says he insisted on doing the shopping and dissuaded her from associating with others from the local (nationality omitted) community.
She also alleges that the father prevented her from learning to drive and refused to allow her to undergo screening for tuberculous.
The mother deposes to an incident of physical abuse by the father at the time of separation on 18 August 2011.[4] The COPS entry in relation to the incident reads as follows:
‘About 10.20pm on Thursday 18 August 2011 police attended……….in relation to a domestic incident. On arrival police were met by the victim and the accused in the front yard. Police spoke with both parties and the victim asked to be taken to a friend’s house for the night. The victim did not disclose any offences. The victim was conveyed to an alternative address with her two children. On Friday 26 August 2011 the victim attended (suburb omitted) Police Station in the company of a representative from a women’s refuge. The victim provided police with a statement alleging an assault by the accused. The victim stated that during the evening she was preparing her youngest child a bottle when her other child starting pulling the microwave. The victim states that she has pulled the child away by the shirt. The child ran into a bedroom where he started crying. The victim prepared the bottle and walked to the bedroom where the accused was waiting, nursing the youngest child. The accused started yelling at the victim about pinching the child. The victim explained what had occurred. The victim took hold of the youngest child and sat on the bed to feed him the bottle. The accused left the room returning a short time later. The accused started yelling at the victim and slapped her across the face. This has caused the victim to let go of her baby on the bed. The accused has then grabbed the victim around the throat with his other hand, causing difficulty for the victim to breath, the victim states that she has attempted to kick and bite at the accused to fend him off her but was unsuccessful. The victim has managed to free her hand and grabbed the accused on the shirt and pushed him off her. The victim has left the room to call police. The accused has walked out and said “You are calling the police, I am going to kill you.’ The accused has followed her outside. It was at this stage that police arrived. The victim was fearful for her safety and had problems explaining to police what had occurred,’[5]
[4] Mother’s affidavit file 29 November 2017, paragraph 21-22
[5] Exhibit K
Police applied for an apprehended violence order for the protection of the mother and a final order was made at Newcastle Local Court on 13 September 2011 in terms of the standard orders 1 (a), (b) and (c) for a period of 12 months.[6]
[6] Exhibit B
The mother says that following separation the father continued to ‘verbally abuse, intimidate and denigrate me to the children.’[7]
[7] Mother’s affidavit filed 29 November 2017, paragraph 31
She deposes to an incident on 26 January 2015. The mother had arrived back from (country omitted) following the funeral of her brother. The children had been staying with the father and the mother understood that she was collecting them from the father at 5pm on that date at (location omitted). The father did not attend and the mother assumed that they had not returned from Sydney. At around 7pm the following day she attended (location omitted) again and rang the father from a pay phone. The father answered and told the mother he would return the children the following day. The mother wanted the children returned that night because she had organised daycare for the [Y] and [X] was due to start school the following day. The father attended changeover at around 8pm. The mother alleges that the father said to her that she was ‘eating the children’s money’ and ‘I am happy that your brother dies and soon you will go. Your family will all go one by one’
The mother reported the incident to police and said that in view of the threat by the father she held fears for her safety. Police applied for a provisional apprehended violence order on behalf of the mother against the father.
She deposes to an incident at changeover on 12 February 2016. The mother had dropped the children off to the father on the Friday and spent the weekend in Sydney. On the Sunday she was due to collect the children from the father at 3pm at (location omitted) but her train from Sydney was running late. She says she telephoned the father a number of times to tell him she would be late and to give him a progress of her estimated time of arrival. As she approached (suburb omitted) Railway Station where her car was parked, she says she received a telephone call from the father in which he said:
‘You have five minutes to meet me at (location omitted) or I am leaving.’
As the mother arrived at (location omitted), she saw the father driving out with the children. She says she tried to wave him down, but the father ignored her and kept driving. The father drove to (suburb omitted) Police Station and insisted that the mother collect the children from there.
When the mother says that when she arrived at the police station the children were distressed and crying.
I found the mother’s account of events and claims of concern about the father, his behaviour and the risk to the children given those concerns were confirmed by other documents and the evidence of the family consultant, to be more reliable than that given by the father.
The mother is not a native English speaker. She had the assistance of a telephone interpreter at the family report interviews but elected not to use one for her oral evidence. Like the family consultant I found the mother’s ‘communication in English was efficient and effective.’[8]
[8] Family Report, paragraph 44
Father’s Evidence:
The father relied on the following documents at the final hearing:
· His Response filed 8 December 2016;
· His Notice of Risk filed 8 December 2016;
· His affidavit filed December 2016; and
· His trial affidavit filed 30 January 2018.
At his interview with the family consultant for the purposes of the Child Dispute Conference memorandum in October 2016 he advised that he was living on his own in a two (2) bedroom unit in (suburb omitted). He said that his son Mr E occasionally stays with him but in cross-examination by Counsel for the mother he denied this.
The father also told the family consultant that he works three (3) to four (4) days a week in (employer omitted) and one (1) day a week as a (occupation omitted) at a local (employer omitted). He reported that he had not re-partnered.
The father did not request an interpreter. His English was quite fluent and he impressed as an intelligent man. He was prone to lengthy, sometimes rambling answers and tangential arguments in response to questions or in the course of submissions and on occasions used the witness-box to pontificate rather than answer the question put to him. He is a complex character who has a very clear view of the world and his place in it.
The father was not always a reliable witness and I treat his evidence with considerable caution his explanations for not attending the family report interviews were contradictory and his reasons for taking the children to (suburb omitted) Police Station on 12 February 2016 when the mother was late to changeover were implausible.
Family Consultant
The family consultant Mr D first saw the parties and the children in September 2012 for the purposes of a s11F Child Dispute Conference in the 2013 proceedings. He was at pains to point out, however, that he had no specific recollection of those interviews nor had he retained any notes.
He also prepared the Child Inclusive Conference Memorandum to Court (CIC) on 31 October 2016 and the Family Report on 28 April 2017 in relation to these proceedings.
The father did not attend the family report interviews. When he was asked why he had not attended the interview he initially said that he was away in another state looking for work and the interviews had been conducted in his absence.
At paragraph 36 of his report, the family consultant wrote:
‘On 29 March 2017 the father’ solicitor Mr Haricharan, wrote to the Court advising that the father will not be attending the Family Report interview on 26 April 2017 as it goes against his cultural beliefs. Mr Haricharan advised that the father believes it is culturally inappropriate to have a discussion about his family matters as he is obliged to resolve matters between himself and his former wife through traditional cultural matters.’
Upon challenge by the Court the father said:
‘The children were taken for interview at time we were sorting out the means of cultural things to be done.’
The father’s reasons are not convincing. Firstly because he initially sought to give an entirely different explanation for his non-attendance to that advanced by his solicitor at the time and secondly because he apparently had no difficulty with the children being interviewed by the family consultant when he and the mother participated in the child inclusive conference with the family consultant on 31 October 2016.
The recommendations of the family consultant read as follows:
Recommendations
’64. It is recommended that if the Court considers that the father can communicate with the mother in a respectful way and not denigrate her or otherwise act in an abusive manner toward her or otherwise acting in an abusive manner toward her, then the parents have shared parental responsibility for decision making.
65. It is recommended that if, however, the Court considers that the father cannot communicate with the mother in a respectful way and without denigrating her or otherwise acting in an abusive manner toward her, then the mother have sole parental responsibility for decision making.
66. It is recommended that the children live predominantly with the mother and spend significant and substantial time with the father along the lines proposed by the mother.
67. It is recommended that each parent be at liberty to delegate the care of the children to whomever they deem appropriate while the children are in their care and that they be under no obligation or encouragement to contact the other parent about this.
68. It is recommended that each parent be at liberty to delegate the duties of changeover (dropping off or picking up the children) to any person that they deem appropriate.
69. It is recommended that the children be restrained from travelling to (country omitted) without the written agreement of both parents until [Y] has attained the age of 12 years (that is 2023) and that after this time any restriction on the children’s travel to (country omitted) be removed.
70. It is recommended that the mother report to the police any and all incidences of abusive behaviour from the father (including any negative comments the father makes to the mother or children about the mother’s third child) and makes enquiries with the police about obtaining an AVO against the father.
71. It is recommended that if the Court finds that the father has acted in an abusive manner towards the mother then the father undertake an 18 week course for perpetrators of domestic violence.
Neither the father nor the mother is a native English speaker. The mother had the assistance of a telephone interpreter at the family report interviews but elected not use one for her oral evidence. Like the family consultant I found the mother’s ‘communication in English was efficient and effective.’[9]
[9] Family Report, paragraph 44
At the time of the family report interviews the family consultant had understood the mother’s proposal to be a continuation of the existing arrangements with an additional order allowing her to use a delegate for changeovers, an order restraining the father from denigrating her and an order permitting her to obtain passports for the children so that she can take them overseas if she wishes. The family consultant’s recommendation in light of his understanding of the mother’s position was:
‘It is recommended that the children live predominantly with the mother and spend significant and substantial time with the father along the lines proposed by the mother.’[10]
[10] Family Report, paragraph 66
In fact the mother’s application was that the father spend time with the children as agreed and failing agreement, for two (2) hours each month supervised by a person known to the children or a professional supervision agency.
When Counsel for the mother brought this point to the attention of the family consultant, he conceded in cross-examination that he had not considered supervised time in the family report on the understanding that they were not orders sought by the mother.
He did consider supervision in his memorandum to Court dated 31 October 2016 where he wrote:
‘Another option is to use a supervised contact service. This would hugely reduce the time that the children spent with the father and would involve costs. It is unlikely either parent would accept this option.’
In his memorandum the family consultant identified the following risk factors:
· Children’s past exposure to family violence;
· Children’s exposure to current and continuing domestic violence;
· Children’s exposure to the father denigrating the mother;
· Children’s exposure to the father’s very strongly and passionately held views that they must now live with him because the mother has now had another child to her new husband and that her new husband has not done the right thing by the mother or the father or the boys culturally; and
· Mother’s mental health as a result of ongoing domestic violence from the father.[11]
[11] Child Inclusive Conference Memorandum to Court dated 31 October 2016 at page 2
When asked by Counsel for the mother whether the father had any capacity for change, the Family Consultant said:
‘…….highly unlikely that the father would substantially change his views primarily because the father believes they are the correct views and that it is his obligation as a parent to assist the children in the way he feels appropriate. The risk is that the children’s relationship with their father will be negatively impacted, deteriorate over time. It is unlikely that the supervision would continue for a long period of time. Typically what would happen is that……………….’
The Law
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975.
Section 60CA of the Family Law Act 1975 provides as follows:
In deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration.
The child’s best interests are ascertained by a consideration of the objects and principles in s.60B and the primary and additional considerations in s.60CC.[12]
[12] Goode & Goode (2007) 36 Fam LR 422, (2006) FLC 93-286 at [9]
Section 61DA of the Family Law Act 1975 provides that when making a parenting order, 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. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parties to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA of the Family Law Act 1975 which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents.
Primary Considerations: Section 60CC(2)
Section 60CC(2)(a) - the benefit of the child having a meaningful relationship with both of the child’s parents.
The mother has been the children’s primary care since that they were born and that they have lived primarily with her since separation.
The children have significant and substantial time with the father since separation which includes weekend time, school holidays and occasions of cultural significance.
I am satisfied that the children have a meaningful relationship with both their parents.
Section 60CC(2)(b) - the need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence.
Apart from complaints that the mother is not following her cultural traditions, the father makes no complaints about and raises no risk of harm concerns for the children in the mother’s care.
The mother says that the children are at risk of psychological and emotional harm in the care of the father due to his ‘propensity for family violence , including in the form of coercive controlling behaviour, assault, denial of financial autonomy……….verbal abuse and other intimidating and denigrating behaviour’.[13]
[13] Mother’s Case Outline paragraphs 7 & 8.
The mother also previously made allegations of neglect against the father including failure to wash uniforms and the children not showering enough but these were not the subject of evidence and I unable to make any findings.
The father denies any allegations of violence against the mother and of coercive and controlling behaviour during the marriage save to the extent that he acted in self-defence from family violence perpetrated against him by the mother. [14]
[14] Father’s affidavit filed 30 January 2018, paragraphs 12 & 18
The father also denies the allegations of denigration post-separation. [15]
[15] Father’s affidavit filed 30 January 2018, paragraph 34
I am satisfied on the totality of the evidence that the children are at risk of emotional and psychological harm from the father’s inability to refrain from denigrating the mother to the children. I accept the evidence of the family consultant that it is likely to have a long term detrimental impact on the children if it does not cease.
Additional Considerations: Section 60CC(3)
Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The only evidence of the children’s wishes are those recorded by the family consultant in his report and earlier memorandum. In his memorandum of October 2016 the family consultant reported:
‘The children described the father as being angry with the mother and that sometimes he said nasty things to her at changeover. This has been occurring for a long time and continuing……….The children described positive things about each parent’s household and spoke happily about things they enjoyed doing in each household. ‘
In the family report the family consultant records:
‘[X] expressed a very clear and mild view that he wanted arrangements to continue as they had been.’[16]
[16] Family Report, paragraph 54
In cross examination with Counsel for the mother the family consultant did not recall (and there was no reference in his notes) the children providing any details about the father’s behaviour at changeovers. The family consultant confirmed that [Y] says his father gets angry about things like there not being enough medicine. Both children knew that their parents didn’t get on and that made them sad.
By all reports the children have achieved all developmental milestones, are doing well at school and are respected in their school community. Both parents should take credit for the children’s achievement.
However, in view of the children’s ages I do no accord significant weight to their wishes.
Section 60CC(3)(b), the nature of the relationship of the child with each of the child's parents and other persons
The children have a close relationship with the mother, each other and their sibling [A].
They do not appear to have relationship with their older sibling Mr E and in fact in direct response to a question from the family consultant [X] ‘denied knowing anyone by this name.’[17]
[17] Family Report, paragraph 53
[Y] ‘was otherwise positive when discussing his father and listed various activities he enjoyed doing with his father.’[18]
Section 60CC(3)(c) - the extent to which each of the child’s parent has taken , or failed to take, the opportunity to participate in making decisions about major long- term issues in relation to the child; and to spend time with the child; and to communicate with the child.
[18] Family report, paragraph 57
I am satisfied that both parties have taken the opportunity to participate fully in the children’s lives, though the evidence of the family consultant is that his enquiries of the school suggest the father has been less involved in the children’s schooling in the last two (2) years. The mother alleges that the father spends his time with the children at the house of friends but this issue was not the subject of cross examination by Counsel for the mother.
Section 60CC(3)(ca) - the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child.
In October 2016 the mother told the family consultant that she obtained an exemption from the Child Support Agency on the grounds of family violence and has never applied for child support from the father. She says this was because she was scared of the father. The father apparently pays the children’s school fees at the (omitted) Primary School they attend because there is a court order to that effect but he does not pay for anything else.
The father told the family consultant that he offered to pay child support but the mother refused. He says that as well as the school fees he pays for the children’s’ clothing, toys and other items.
Section 60CC(3)(d) - the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from either of their parents; or any other child or other person with whom they live.
The mother’s proposal will involve a significant reduction in her contact and involvement with the father. It will also involve a significant change in the nature and quality of the father’s relationship with the children. The father was not cross-examined about the likely impact of a reduction in time would have on his relationship with the children. In response to a question from Counsel for the mother the family consultant agreed that one possibility was that the children may ‘bloom’ absent parental conflict.
I expect, that given the children’s comments to the family consultant that they will be distressed at seeing their father less frequently. I am concerned that distress would turn to devastation if the mother’s proposal was adopted in its entirety and the father’s time was limited to two (2) hours a month and was supervised. The clear evidence of the family consultant is that supervised time is likely to result in the father stopping time altogether leading to the cessation of his relationship with the children.
Section 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
Both parents live in the (suburb omitted) area and own or have access to a motor vehicle. There are no practicable difficulties associated with the father spending time with the children.
Section 60CC(3)(f) - the capacity of each of the children's parents; and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs.
On the evidence before the Court the mother is clearly able to meet the needs of the children. I am satisfied that she has always promoted a relationship between the children despite the challenge of a highly conflicted parental relationship.
I cannot make the same finding in relation to the father. The incident at (location omitted) is a case in point. The father’s evidence was that he was not angry with the mother for arriving late to changeovers. He wanted the children to be safe and that a government authority, like the police, was an appropriate place to take the children. He said, ‘I wanted to be safe myself.’
I cannot accept that explanation. I do not accept at all that the father felt threatened by the mother or feared or feared for his safety. I am satisfied that the father’s motivation was to punish the mother for being late. He wanted to punish her in a very public way to maximise her embarrassment. He may even have thought the police would take his side in the dispute.
Either way, the father did not appear to have any real appreciation of what the children may have been going through when he took them to the police station and was unable to accept suggestions that the children may have been distressed or may have thought they or the mother may have done something wrong.
He clearly does not have a positive opinion of the mother. He has not been able to refrain from expressing these views and denigrating the mother to the children and according to the mother to the wider (nationality omitted) community. I find he is unlikely to desist doing so.
I do not accept his submission that as they are divorced, he and the mother live separate lives and there is no need for him to speak at all about [A] to the boys. Nor do I accept that the children will understand the father’s views as they grow older because they will be aware, and he will teach them, the importance of their cultural traditions. As the family consultant explained:
‘….a child coming to an understanding as to why something is happening from a cultural perspective may assist them in some regard but by no means will it protect them from the negative harm that denigration is having’
The risk of ongoing denigration according to the family consultant is ‘cumulative’ and can involve rejection of a parent by a child, alignment of a child with a parent and in some cases the child simply endures the negative impacts which is often described as ‘a child being in a war-zone with nowhere to escape.’
The family consultant stressed it was important for the Court to weigh up the close relationship the children have with the father, which they would experience as a significant loss if their time was restricted, with the long term implications for the children and their relationship with the mother if the father was unable to refrain from his denigration of the mother.
Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the Court thinks are relevant
The parties have different views around (nationality omitted) cultural traditions and how they might apply to their individual circumstances. The mother says in her trial affidavit:
‘In the (nationality omitted) Culture, it is not heard of for a couple to separate. If a couple does separate then the children are not involved at all. Initially any problems between a man and a wife in (country omitted) are kept between the husband and wife. It is not often marital problems are shared with other people. Initially, if a couple are experiencing severe relationship problems, then a family member from both sides will come together to talk to both the parents. They talk to the parents in the hope they are able to reconcile the parents. If the parents agree then the parents stay together. If the parents continue to disagree and do not wish to live together then the person who does not agree can spend some time on their own. If parents do separate in (country omitted), then the children always live with the mother and the father simply comes and goes and sees the children whenever he likes. In (suburb omitted) there is a (nationality omitted) community and our approach in dealing with separated couples is very similar to the way such a situation would be dealt with in (country omitted). Family members come together to reconcile parents not discuss parenting issues.’[19]
[19] Mother’s affidavit filed 29 November 2017, paragraph 25-29
Conversely, the father says in his trial affidavit:
‘………in (nationality omitted) culture if a family is to separate, the children are to remain with the Father, unless the Father agrees for the children to remain in the Mother’s care. I say that in (country omitted) it is not accepted for the children to live with the Mother and be introduced to a new family. The children are to remain with the Father and the Mother has the ability to spend time with the children as often as she likes.’[20]
And:
‘In (nationality omitted) culture it is inappropriate for the Father to have a relationship with a step-child. As [A] is not my biological child it is culturally inappropriate for me to regard [A] as part of my own household. In this regard, I say that culturally [A] is a member of the household of her biological Father’s family.’[21]
[20] Father’s affidavit filed 30 January 2018, paragraph 39
[21] Father’s affidavit filed 30 January 2018, paragraph 37
In a paper entitled ‘(omitted)[22] the author, (omitted) explores these issues of customary law and their interaction with the Australian Legal System and writes:
‘In (nationality omitted) there are over 50 unique sets of customary law and they are applied within the contact of particular ethnic group.
(omitted) customary law takes a patriarchal approach when it comes to child custody………….[it]looks at the rights granted by the patriarchal customs, giving males rights to full custody in the event of divorce………….the maternal family has the right to be paid restitution before the children are allowed to live with their paternal family.
[22] (omitted) Law in Comparison with Australian Family Law: Legal Implications for (nationality omitted) Families,
The parties’ interpretation of customary law is also probably a reflection of the deeper divisions within their relationship.
The father’s interpretation may well be the correct one; however, his conduct towards the mother in the presence of the children is incompatible with the children’s enjoyment of those traditions.
He denies that the children are at risk of emotional or psychological abuse and they are and will continue to be brought up in the (nationality omitted) cultural traditional and will understand his perspective and will see it as ‘normal’. He says that having no relationship with [A] will not necessarily be detrimental to his relationship with the boys.
That seems to me a rather naïve attitude by the father. One that is not borne out by his experience with his older son Mr E.
The mother will provide a strong, modern, (nationality omitted) role model for her children as they grow older. The children may struggle to connect with their father and his views which will appear at odds with their lived experience in Australia and the close bond that they have with their sister [A].
Section 60CC(3)(h) - if the child is an Aboriginal child or a Torres Strait Islander child:
This is not relevant.
Section 60CC(3)(i) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The mother has demonstrated that she is capable of carrying out the responsibilities of parenthood. Unfortunately, I do not have the same confidence in the father. The evidence of the family consultant in relation to the children’s knowledge around the father’s view of their mother and sister raises real concerns in relation to the father’s insight into the impact of his behaviour on his children.
Section 60CC(3)(j) & (k) -any family violence involving the child or a member of the child’s family.
I am satisfied that the mother has been the victim of family violence during the marriage relationship where the father has been the perpetrator and that it was necessary on at least one occasions for her to obtain a family violence order.
I am satisfied that the father continues to have a controlling attitude towards the mother and I understand why, despite the fact that the parents have been separated for over seven (7) years, the mother is desirous of all future time between the father and the children occurring at a contact centre.
I find that it is in the children’s best interests that any future changeover should occur at a contact centre in circumstances dictated by the mother.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children
It is important that any order made by this Court allows the parties to resume their lives independently of each other. This is the second set of parenting proceedings for the parties since separation and any orders that the Court makes should, as far as possible, minimise the possibilities of further proceedings into the future.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The mother sought an order pursuant to s. 68B of the Family Law Act 1975 that the father be restrained from entering on or approaching any school or after-school care facility attended by the children.
The evidence of the mother is that she is ‘scared to go to the children’s school in case the father is there and abuses her. The mother advised that people in the (nationality omitted) community are scared to support the mother or even attend the school because they are frightened of the father’[23]
[23] CIC Memorandum 31 October 2016, page 1
The recommendation of the family consultant in this regards was:
‘If the Court is concerned that the father will verbally abuse and denigrate the mother at the children’s school it may be appropriate that the father be restrained from attending the child’s school or as a minimum requiring the father to leave the school immediately he becomes aware that the mother is also at the school.’
The evidence of the family consultant following conversations with the children’s school is that the mother is an active member of the school community attending three (3) or four (4) times a week. The father was involved in 2016 but less so in 2017. There was no evidence that the father had been involved in any negative interaction with the mother at the school or with the teaching staff at the school.
However, the children were obviously aware of parental conflict at school. I think it would be in the children’s best interests that I make the s. 68B order and I will make that order. School is a safe haven for children and they need to be protected from any risk of their parents coming into conflict at their school.
I intend to order that the father be restrained from discussing the Court proceedings or the children’s living arrangements with the children or questioning the children about their mother’s household.
As I said at the outset, this is a particularly sad and difficult case. The parties have come to live in Australia from (country omitted) presumably because they believed it would offer a better quality of life for themselves and their children.
In the case of the father the cultural beliefs which are the foundation of his life have been challenged and the Court has some sympathy for him in this regard. His older son Mr E has had a difficult path. He has come to the attention of police for a range of offences. The material produced under subpoena by NSW Police shows that the father is unable to control Mr E’s anti-social behaviours and has had to call police for their assistance to remove him from his home. In those circumstances I will make the restraining orders sought by mother.
Rice & Asplund
As Counsel for the mother points out, I must have regard to the fact that there is an existing order for the children to spend time with the father.[24]
[24] Hungerford & Tank [2007] FamCA 637
Rice & Asplund[25] makes it clear that the Court should not reconsider orders about children unless there had been some change of circumstance which means that it would be in the children’s best interests that the Court do so.
[25] Rice & Asplund (1979)FLC 90-725
I am satisfied that there are good reasons to reconsider the 7 November 2013 orders. In mid-2015 following the making of those orders, the mother commenced a brief relationship with the father of her daughter [A]. The mother says that when she told him she was pregnant he made it clear he wanted nothing to do with her or the baby.
The mother says that the father does not talk about [A] and does not allow the boys to talk about their sister or acknowledge her in any way. In the CIC memorandum the father’s position is recorded by the family consultant:
‘The father advises that it is (nationality omitted) cultural traditional practice that if a woman divorces and wants to marry the new man has certain responsibility including that he must declare whether or not he is going to be responsible for the safety of the mother’s existing children. If he is not, then those children must go to live with their father and see the mother occasionally. The father advised that the new man must also make amends to the first husband including repaying part of dowry money paid by the first husband’s family. The father advised that because the mother’s new husband has not declared himself and signed legal declarations that he will be responsible for the safety of the boys and repaid dowry money and other cultural appropriate things then the boys must not live with the father.’ [26]
[26] Child Inclusive Conference Memorandum to Court dated 31 October 2016, page 2
The evidence of the family consultant was that the father’s denigration of the mother was a live issue at the time the 2013 consent were made, but that the arrival of [A] has increased the ‘clash of cultures’ that the father is experiencing and escalated the conflict between the parents.
The father does not want the 2013 orders to be changed. He says that other than issues around poor communication, which he attributes almost exclusively to the mother, the orders have served the parties well and should not be changed.
I am satisfied, however, that it is in the children’s best interests that I reconsider the 2013 orders because the introduction of [A] into the mother’s household has clearly heightened the conflict between the parents.
Parental Responsibility
I find on the evidence that an apprehended domestic violence order was made against the father for the protection of the mother in 2013 and the father has perpetrated family violence against the mother and engaged in coercive and controlling behaviours that meets the definition of family violence in section 4 of the Family Law Act so that the presumption does not apply.
I find in any event that the parties have a highly conflictual relationship with no capacity to communicate in a manner that could promote the interests of the children such that that presumption should be rebutted under s61DA(2) or s61DA(4).
When I consider all of these issues I am of the view that the mother should have sole parental responsibility.
With those findings the requirement to consider equal time or substantial and significant time pursuant to s65DAA is not triggered and the Court must make parenting orders consistent with the findings made in relation to s60C with reference to s60CA and s60B.[27]
[27] Heath & Hemming (No.2) [2011] FamCA 749
With Whom Should the Children Primarily Live?
It is common ground that the mother has been the children’s primary care since that they were born and that they have lived primarily with her since separation.
The father’s case that the children should live with him is premised solely upon his cultural views whereas the paramount consideration for this Court are the best interests of [X] and [Y] and in their determination I must be guided by the objects and principles of Part VII of the Family Law Act 1975.
In any event, the father’s position at the commencement of the hearing was that the children should live with the mother unless she re-partners and she has not re-partnered.
In all the circumstances I am satisfied that it is in the best interests of the children that they live with the mother.
The frequency and circumstances of the father’s time with the children
The children are currently spending significant time with the father each alternate weekend, half school holidays and on special occasions. The mother proposes an order that involves a significant reduction in that time and could result in a cessation of time altogether, if the father was not prepared to submit to supervision.
Such a reduction in the time could cause difficulties for the children. I have already found that the children have a loving relationship with their father. They are used to seeing him on a regular basis. Not seeing the father may offer some relief to the children from the father’s persistent negativity towards and denigration of the mother and [A] but it might also cause the children significant grief for the loss of relationship. The evidence of the family consultant when asked what the impact would be for the boys if they went from seeing their father every second weekend to two (2) hours once a month was:
‘I think it likely to have a significant impact and difficult for the boys to manage that at least initially. While the children are unhappy at the conflict, and the denigration, not seeing their father as much as they currently do, seeing him quite a lot less than they currently do, I think is likely to be difficult for them to accept over time they may well become accustomed to that and I accept that they may blossom in the absence of denigration but it would certainly be a significantly impact upon them at least initially.’
I am satisfied having considered the findings made in respect to the primary and additional considerations that the father does not present as an unacceptable risk to the children.
The identified risk is the father’s denigration of the mother and the consequential undermining of the children’s relationship with their primary carer.
It is unlikely that the father will ever be able to change his behaviour without interventions and therapeutic support which he is unlikely to accept if it conflicts with his (nationality omitted) cultural traditions. As the family consultant observed in his oral evidence:
‘….. the father holds the view he holds strongly and I think I’ve referred to them as passionately held views. He’s proud of those views and he believes it is the correct thing to inform the children of that as part of his wish to alter the children’s situation so that they are living in a situation that is consistent with his view as to what should occur.’
The father does not believe that there are any issues that need addressing and therefore has no intention of seeking any help.
The risk posed by the father in relation to abusing or denigrating the mother at changeovers may be managed by the use of a contact service or the engagement of delegates by the parents.
The risk posed by the father of denigrating the mother to the children or in their presence once the children are in his care is a more difficult proposition. The father’s behaviour could not be monitored or controlled unless his time was supervised.
Any order for supervision would have to be made on a long term basis given the father with his ‘passionately’ held views and failure to accept any fault.
To be effective a supervised time should only be a stop gap measure with arrangements increasing and changing to unsupervised time once time has passed and the parties have addressed the issues which initially led to supervised time occurring.
The Full Court in Moose & Moose[28] expressed very strong and clear views about the difficulties of long term supervision orders cautioning at [119]:-
“The undesirability of, and practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C4.1.1 and 4.1.2…..In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case ‘objectively viewed reveals the potential of unacceptable risk to the children if contact with the father is not supervised…’ then referred to the difficulty associated with long term supervised contact and said ‘the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests…whilst supervised contact in this case will protect the children from any potential physical harm, the effect on the emotional well-being cannot be ignored.’”
[28] Moose & Moose [2008] FamCAFC 108
A long term supervision order is not in these children’s best interest and is likely to lead to harm for the children who will not want to or be able to endure all that is involved in spending supervised time with a professional agency.
It is also unlikely that the father would comply with an order for supervised time which on the evidence of the family consultant would cause additional stress to the children, at least in the short to medium term.
The only other option available to the Court, that is by no means ideal, is to reduce the time the father spends with the children and thereby reduce the children’s exposure to the father’s negative views of the mother.
I am satisfied that unsupervised day time periods is a proper balance between the competing considerations under section 60CC (2)(a) & (b).
I will further make an order that all changeovers shall occur at a venue or a contact centre nominated by the mother and that the father pay the costs associated with changeover of the supervision and of course if he fails to do so then the time shall not occur.
I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of Judge Costigan
Date: 27 April 2018
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