Nilssen and Kenwood

FEDERAL CIRCUIT COURT OF AUSTRALIA

NILSSEN & KENWOOD

[2017] FCCA 3264

Catchwords:
FAMILY LAW – Parenting – where father has embarked upon life with a cult – whether such a life causes risks for the child – whether sole parental responsibility is appropriate– whether injunctions against certain behaviour are appropriate.

Legislation:

Family Law Act 1975 (Cth), ss.60B,60CA, 60CC, 60CG, 61DA, 64B, 65D, 65DAA, 65DAB

Applicant:

MS NILSSEN

Respondent:

MR KENWOOD

File Number:

BRC 4611 of 2016

Judgment of:

Judge Vasta

Hearing dates:

5,6 and 18 December 2017

Date of Last Submission:

18 December 2017

Delivered at:

Brisbane

Delivered on:

22 December 2017

REPRESENTATION

Counsel for the Applicant:

Ms Fraser

Solicitors for the Applicant:

Brooke Winter Solicitors & Advisors

The Respondent appearing on his own behalf.

Counsel for the Independent Children’s Lawyer:

Ms Dart

Solicitors for the Independent Children’s Lawyer:

Legal Aid Queensland

ORDERS

That the mother have sole parental responsibility for X born (omitted) 2014 (“the child”).
In the exercise of the mother’s parental responsibility referred to in Order 1 hereof the mother shall:
(a)Notify the father in writing (via SMS text message or email) of a decision to be made by her at least 30 days in advance of such decision to be made;
(b)Seek a response from the father, if he so wishes the mother to consider an alternate proposal about the decision to be made within seven (7) days of the text message being sent;
(c)The mother will consider any alternate proposal given by the father, with reference to the best interest of the child; and
(d)The mother will notify the father of her final decision within seven (7) days of receiving his response of the final decision to be made.
That the mother shall be responsible for the daily care, welfare and development of the child when the child is in her care.
The father shall be responsible for the daily care, welfare and development of the child when the child is in his care.
Where any alteration to the arrangements for the care of the child is made by agreement of the parties, the alteration shall be confirmed in writing prior to the altered arrangement taking effect.
That the child live with the mother.
That subject to Order 8, the child spend time with the father at all times as maybe agreed between the mother and father in writing (via SMS text message is sufficient) and failing agreement as follows:
(a)For four (4) contact visits for a period of six (6) hours on the following dates with the first 15 minutes to be supervised at (omitted) Contact Service and five and a half (5.5hrs) hours unsupervised away from the Contact Centre and the final 15 minutes to be supervised at the Contact Centre thereafter:
i.    Sunday 24 December 2017;
ii.     Sunday 31 December 2017;
iii.   Saturday 13 January 2018;
iv.    Saturday 27 January 2018.
(b)From 10.00am until 4.00pm every alternate Saturday;
(c)From 10:00am to 3:00pm or at such other time as agreed between the parents on each of the following special occasions:
i.    Boxing Day 2019 and each alternate year thereafter;
ii.     Christmas Day 2018 and each alternate year thereafter;
iii.   Easter Sunday 2018 and each alternate year thereafter;
iv.    Good Friday 2019 and each alternate year thereafter;
v.   The Saturday immediately prior to the child’s birthday if a non school day.
(d)If the child’s birthday falls on a school day, from after school until 6.00pm.
That upon the giving of twenty-eight (28) days notice to the father, the mother be entitled to suspend the child’s time with the father so that she can take a holiday with the child, for up to four weeks in each calendar year. The mother is to arrange make-up time between the child and the father at all reasonable times as agreed between the parties in writing and failing agreement on the weekends immediately following the child’s return from holidays.
Unless otherwise agreed between the parties in writing changeovers shall occur:
(a)At (omitted) at the commencement and conclusion of time;
(b)In the event (omitted) is closed, at the (omitted) shopping centre at the entrance to the cinemas.
That the mother and father be permitted to arrange separately with the child’s school, to attend enrolment information days and parent/teacher interviews, and to further attend school concerts, sporting carnivals and other events parents are ordinarily invited to attend.
That both parents be recorded on the child’s school or day care enrolments, extra curricular activities and any other enrolment or activity the child participates in whereby parent’s details are required, and further both parents be listed as an emergency contact.
That this order is authority to the day care facilities and schools attended by the child to give each parent information about the child’s education.
That both parents shall ensure that all communication with the child’s school, teachers and staff, is respectful and courteous.
That pursuant to s.68B of the Family Law Act 1975 (Cth) until the child attains 14 years of age, the father, be restrained and an injunction issue restraining the father from:
(a)Without prior consent of the mother in writing (via SMS text message), taking the child to any church or religious gathering or event related to the Church of (omitted) or any associated group or reinvention of such group, including but not limited to:
(i)Church gathering or event;
(ii)Prayer group and/or fellowship;
(iii)Bible Study;
(iv)Preaching including street preaching;
(v)Protest or demonstration;
(vi)Religious meeting.
(b)From bringing the child into contact with any members, both past and present, adult or child of the following, (omitted) Ministries, The Church of (omitted), The Church of (omitted), The Church of (omitted), The Church of (omitted) or from any reinvention of such “Church” groups (“the Father’s church groups”) which the father is a member of;
(c)Exposing or allowing a third party to, expose the child to any interpretations of The Bible used by the father’s church groups, or preaching to the child about such interpretations;
(d)Discussing religious matters with the mother.
That the mother do all acts and things necessary to attend upon her general medical practitioner, for the purposes of seeking a referral to attend upon an Allied Health practitioner to seek counselling and assist her with fears of the father and his religious beliefs.
That pursuant to s.121 of Family Law Act 1975 (Cth) the mother be granted leave to provide to her Allied Health Practitioner a copy of Ms V’s and Ms J’s family reports.
That the mother and father shall:
(a)Keep the other parent informed of their residential address, landline and mobile contact telephone numbers and inform the other parent of any change to that information within forty-eight (48) hours ;
(b)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practitioner to release the child’s medical information to the other parent;
(c)Not consume alcohol in excess of the legal driving limit or use any illicit drugs so as to be under the influence of either alcohol or illicit drugs when the child is in their care or permit the child to remain in the presence of any person using illicit drugs;
(d)Ensure the child is not exposed to television content, DVD’s or internet publications that have a rating or classification recommended for children above the child’s age.
That this order operate as authority to the Medical Practice, Allied Health Professional or any hospitals or health facilities the child may attend upon to provide both the mother and father with any information they seek concerning the child and provide copies of medical notes, records or reports relating to the treatment of the child and such costs associated with the provision of the information is at the parents own expense.
That during the time the child is with either parent that parent shall:
(a)Respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)Speak of the other parent respectfully and refer to the other parent as “mum” and “dad”;
(c)Not denigrate, criticise or insult the other parent in the presence or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or the presence of the child.
That the parents agree to use SMS text message or email to communicate about the child, unless in the case of emergency by phone, and shall ensure they communicate with the other parent about issues such as:
(a)Any special medication the child requires;
(b)Any other unscheduled or periodic activities or events of which the other parent should be aware; and
(c)A list of medical practitioners recommended by the child’s medical specialist; and
(d)The parties shall ensure that all communications are respectful and not used to insult the other parent.
That the child be permitted to travel interstate or overseas for a block period with the mother provided as follows:
(a)That the mother provides the father with not less than twenty-eight (28) days notice prior to any anticipated travel, copies of return airline flight tickets, a travel itinerary and contact details for the child for the duration of such travel;
(b)That the travel is only to a country signatory to the Hague Convention;
(c)That the mother facilitates Skype or telephone contact between the father and the child at least once per week while the child is overseas.
That the Independent Children’s Lawyer be discharged.

NOTATION:

A. That pursuant to section 65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.

B. That the mother consents to orders being made requiring her to attend counselling.

IT IS NOTED that publication of this judgment under the pseudonym Nilssen & Kenwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 4611 of 2016

MS NILSSEN

Applicant

And

MR KENWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

This is a parenting matter. The Applicant mother, Ms Nilssen, was born on (omitted) 1994. The Respondent father, Mr Kenwood, was born on (omitted) 1992. The parents began a relationship in (omitted) 2013, shortly after the father moved to Australia from (country omitted).
Notwithstanding that the mother became pregnant in (omitted) 2013, the parents did not ever live together. X was born on (omitted) 2014. This hearing is about what parenting orders are in the best interests of X.

History

In (omitted) 2015, the father was working at the (employer omitted). A group of four men asked if they could use the showers and the father allowed them to do so. These four men then “converted” the father to their form of Christianity. The father introduced these men to the mother. He then urged the mother to relocate with him to New South Wales with these men.
Not wholly unsurprisingly, the mother declined this offer and the father left the (omitted) area with these men. There was very little, to no, contact between the father and the child after this time.
According to the mother, the father did not have any contact with her from September 2015 until a date in March 2016. On that day in March 2016, the mother said that she arranged for a supervised visit with the “(omitted) police”. On that visit, the mother said that the father “strongly spoke about wanting the child to go down to where the father lived”.
The mother was concerned about the child being taken away from her by the father and filed an initiating application on 18 May 2016. She was eventually able to serve the father. In that application, the mother sought that the child live with her and that she have sole parental responsibility. She sought that the father only have supervised time with the child and that the father not discuss any religious themes with the child.
The matter came before me on 11 July 2016. The mother was appearing for herself and the father had a duty lawyer appear for him. I ordered that the father file his material and that a child inclusive conference occur on 9 August 2016.
In his response that was filed on 8 August 2016, the father wanted the child to live with him. The father also wanted sole parental responsibility. The father sought that the mother would be at liberty to spend time with the child “with appropriate precautions put in place that would not cause a child to come into any harm in any way”.

Child Inclusive Conference and Subsequent Court Appearances

The Child Inclusive Conference occurred on 9 August 2016 and was conducted by family consultant, Ms T. The issues that Ms T identified are still the main issues in play today; that is, whether or not the group with which the father associates is excessively controlling, restrictive or anti-social in such a way that would pose a risk to the child.
Not surprisingly, Ms T noted that the co-parenting relationship was difficult because of their differences on the issue of the religious convictions of the father. Ms T noted that the father had a fervent wish for the mother to adopt his Christian faith and for himself, the mother and the child to share a family life together in accordance with the life that the father was now leading.
Ms T noted that the father was concerned that the child was being exposed to “unhealthy” influences. These included drug use, adult rated television, idolatry and other sinning behaviours. Ms T noted that the father was desperate for the child not to be raised in a sinful lifestyle especially when the father would be able to give him an opportunity to be saved from Hell and live a life for God.
Ms T did not make any recommendation for a change of residence but suggested that the child spend more time with the father to see if the relationship between them could be rebuilt. If such were possible, a family report may be of benefit.
The matter came before me again on the 17 August 2016. On that date, I put in place a regime that the father be permitted to spend between one and two hours with the child each alternate Saturday and Sunday at a park in (omitted). I also appointed an Independent Children’s Lawyer (“the ICL”) on this date.
On 27 October 2016, the ICL appeared and I changed the regime to one where the father would spend time each alternate Sunday with the child at the (omitted) Contact Centre at (omitted). I had been asked to order that neither party discuss or expose the child to any religious or related beliefs and ideas but I instead simply ordered that the father be restrained from discussing such matters with the mother.
On 20 December 2016, I increased the contact time at the (omitted) Contact Centre, in line with the observations made by the family report writer, Ms V.
On 10 May 2017, I made an order to gradually increase the time that the father spent with the child to include unsupervised time. The current regime is that the father is to spend every alternate Sunday with the child. The first 15 minutes supervised at (omitted). The next four hours is unsupervised away from the contact centre and the final 15 minutes is supervised at (omitted).
On 22 June 2017, I set the matter down for trial, and made the usual trial directions. The trial was heard on 5 and 6 December 2017 and then adjourned part heard to 18 December 2017.
The father submitted a case outline for trial. The orders that he now seeks are that he and the mother have shared parental responsibility for the child and that the father spend each weekend from Friday 4:30 PM until Monday 8:30 AM with the child.
The trial then proceeded upon the basis that there were no concerns with the mother’s care of the child. The only issue in this case was whether the “religious ideology” of the father was a risk to the child such that the Court should limit the time that the father spends with the child.

Religious Ideas of the Father

It was somewhat difficult to pin the father down on exactly what his religious ideas are. The group to which the father belongs has been known as the Church of (omitted), the Church of (omitted) and the Church of (omitted). It is now not contested that this group also has a connection to (omitted) Ministries and the Church of (omitted).
In his original affidavit of 7 August 2016, the father says the following about his road to Christianity.
“6. Over a period of days before the 23/03/2015 I explained my encounter with my family of what took place and this is the truth of the matter:
Ms Nilssen and I were in a fornicating relationship for over 2.5 years, and during this time we had our son X. Up until 6 months after his birth, I was physically, emotionally and financially supporting Ms Nilssen and my son, as we lived together in the same house for the entire duration of our relationship. We lived a life of much drug use, drinking and mostly smoked a lot of marijuana together. This was how we lived our life together for our entire relationship until she fell pregnant, yet her smoking of drugs and cigarettes still occurred at times with others, whilst pregnant, with such person as her father and her aunty and I due to this had to confront Ms Nilssen about this, asking her to not do this anymore.
7. When our son was 6 months old, I began reading a Bible and became very convicted about our way of life, believing it was evil in the sight of God, and I did not want Ms Nilssen or my son to live this sin filled way of life that we were living together, believing we were setting a very bad example for our son. This led me to begin seeking God in repentance asking Him to forgive me for all of my sins and asked him to save me and make me a new person, that I might lead my family away from this evil life that we were living. By God’s grace, through faith in Jesus Christ, God answered my prayers and I indeed became a new person, no longer wanting to live this wicked way of life any more. It was at this time that I became a Bible believing Christian, and this is when my troubles with Ms Nilssen began.
The Bible says that fornicators will not enter the kingdom of God, so I repented to God for being in a fornicating relationship telling Ms Nilssen that I could no longer live in her parent’s home with her, as if we were married when we were not. It was here that I asked Ms Nilssen to allow me to lead her to a better way of life and asked her to marry me. I asked her to trust me, telling her that I would lay my life down for her, vowing to lead her away from all the sinful people who had been a very bad influence in our lives all these years, with all the drugs, marijuana, alcohol and witchcraft that we lived amongst during the entire time we lived together on (omitted). Very sadly (omitted) is a small town on the (omitted), that is flooded with people that are involved very seriously in all manner of witchcraft and drug use.
I was hoping to take her and our son to a better place, to live a better life away from all the sin that was influencing us on a daily basis.
After much prayer, I finally met some good Christian people and a good Christian church which was at the time, in (omitted), NSW. I wanted Ms Nilssen to come with me, that we would both begin to take the steps to be married, that we could both live the Christian way of life together and be the best parents we could be for our son, and any other future children God might bless us with.
Upon finding the church in (omitted), I pled with Ms Nilssen for several days, asking her to follow me, and she agreed to come with me. But when the day came whereby we were set to leave together for (omitted), Ms Nilssen was heavily pressured to not follow me by some of our past associates and her family. Due to there(sic) sinful influence in her life, Ms Nilssen changed her mind, and refused to follow me, also choosing not to marry me. She chose instead to stay in the sinful lifestyle that we had been living for the past 2.5 years, and in doing so she chose to stay living at the home we lived together, with her family and in doing so chose to stay joined to all the sinful associates that we had together in (omitted).
Ms Nilssen refused to come with me and would not allow me to take our son.
On the date of 23/3/2015, the day that I departed from the family home, Ms Nilssen and her sister began manifesting very concerning behaviour with shoutings and screamings and all manner of evil communication, which sadly was nearly an everyday thing that I witnessed being a resident in their household for 2.5 years, this also is a sincere concern, that I as the father, have concerning my son’s emotional and spiritual wellbeing.
Due to Ms Nilssen rejecting my proposal to be her future husband, I therefore eventually travelled to (omitted), NSW to be with the Christians that I knew, without Ms Nilssen, in the hope that she would soon soften her heart and come to be with me as she said she would at the first.”

As can be seen from this version, the father was testifying to this Court that his “conversion” was something that he, and he alone, undertook unaided by anyone else. He testified that it was after he had tried to “convert” the mother by himself, that he met his Christian friends.
However, it emerged during this trial that the father’s “conversion” was quite a different event that described in his affidavit. It turns out that he was “converted” by four men as described earlier in these reasons.
In the affidavit, the father also contends that he and the mother were living together. It also emerged in evidence that the mother had always lived with her own mother and brother and that the father was often at the residence and also stayed overnight. The father still maintained a totally separate address from the mother.
There was no satisfactory answer given as to why there was such a stark difference in the “conversion” story. This is very worrying considering that the father now espouses principles of honesty.
The father was very cagey as to what it was that his group actually believes. I am still unsure as to whether this was a deliberate ploy to ensure that the Court was only given the barest of details or whether the father truly didn’t know. I favour the latter explanation for reasons that will become apparent.
The father said that the Lord opened his eyes to the sinful life that the father had been leading. The father said that he wept and confessed all of his sins to his fellow group members. This then meant that he was “converted” and could now be baptised. He said that Christ had metaphorically killed his old self and that he was now reborn in the Blood of the Lamb and would be saved.
He said that God speaks directly to him. God has told him directly many things. Some of these are mundane; what shirt to wear, to polish his shoes and other simple matters. The father again was cagey about what else God tells him directly.
The father said that he must live a life according to Scripture – and that Scripture is the (omitted) of the Bible. Such a life forbids fornication, homosexuality, drug taking and swearing amongst other things.

The Evidence of the Father

There were some inherent problems with the evidence of the father. Firstly, there was the failure to fully explain his “conversion” in his affidavit.
The father also said that he had “confessed” all of his sins and had asked for forgiveness. He said that he had also asked for forgiveness from the mother. Yet he declined to acknowledge two of his most grievous sins.
In an affidavit (which was marked Exhibit 6 in these proceedings), that the mother had filed in a domestic violence proceeding, the mother detailed two horrific episodes of anal rape committed upon her by the father.
“21. The first occurrence of violence from the respondent, was the night of the respondents co-worker’s going away party. The respondent was very intoxicated with alcohol and led me away from the party to behind his residence. We started to have sexual intercourse, and then the respondent forced anal rape on me, I yelled ‘Stop, No, Please!’ the respondent lent down and told me ‘Just Cop it, you’ll be fine’ I couldn’t get up, as the respondents body weight was on me while I was laying front on, on the grass. I was biting my bottom lip to try compensate the pain, with tears flowing down my face. When the respondent was finished he just got up and returned to the party, I laid there for a while then shortly left to my house. I confronted the respondent about it the next day, and he denied it, and apologised for being that drunk. I was distant from him then later on forgave him. Any sexual assault did not occur again until later that year.
22. In the month of December 2013, one night the respondent slept over at my house, as he had a very bad tooth ache, later on I found out the tooth pain was because of his heavy drug use. The respondent was drinking straight whisky with ice, whilst playing xbox on my bed. Later on we started having sexual intercourse and the respondent started to get rough, pulling my hair and throwing me around in positions, I was telling him ‘Ouch, Stop, Relax’. The respondent then put me in a face down lying position, and started anal rape. I said ‘No, it hurts, I don’t want to do it!’ The respondent said ‘Shhh, you’ll wake up your mum, it’ll be over soon’ I tried wiggling around to escape the position, but the respondent pressed his hand against the back of my shoulder blades, squishing my hands underneath me and preventing my arms to move. I clenched my teeth so hard and bit my bottom lip to try and focus on that pain, to endure the forceful pain of anal rape. When the respondent was finished he literally fell of me and passed out naked. I quietly cried then shortly after had enough energy to crawl to the toilet, I was in a lot of pain, went back to my bed and went to sleep. I confronted him about it, because I felt like I needed to see a doctor. The respondent again denied any of this occurring and apologized for what occurred. I told him that he needed to stop drinking like that because he would have apparently no memory of what he do to me.”
The evidence of the father was that he could not remember any such incident. He claimed that he was “in a bad place” and often too drunk to remember his actions.
I totally reject that explanation. The detail with which the mother has recounted these incidents is such that I find that it would not be possible for the father to have committed such acts and have no memory of them.
Whilst the father had listed many sins that he had committed in the past, he failed to mention sodomy and certainly did not mention rape. He conceded during evidence that he was “a sodomite”, yet this is not a “sin” to which he has confessed to the members of his group. He has not apologised to, nor asked for forgiveness from, the mother over these incidents.
This alone causes me to doubt the validity and veracity of the “conversion” of the father.
Whilst the father espouses a number of values, and backs those values with scriptural references, he has very little understanding of those values. Instead, it would seem that he is “rote learning” certain passages of the Bible to which he retreats whenever there is a challenge made as to the authenticity of his actions.
He has no contextual understanding of the Bible and so the interpretations that he gives to some scriptural passages can, in some cases, lead to results that are the antithesis of what the scriptures actually meant.
On the face of it, it may not seem that such a dearth of true understanding is very significant. It is obvious that it would be a wonderful way to live life if it were done solely by the values of “Love your God with all your heart and all your strength” and “Love thy neighbour as thy self”.
If that were all there was to the father’s beliefs, then there would be no problem. However, there are sinister aspects to the way in which the father’s group functions.

The Evidence of Mr M, the Brother of the Father

The brother of the father swore an affidavit and gave evidence in these proceedings. Mr M said that at first, he thought that the way he acted towards his brother had driven him (the father) into the arms of this religious group.
He told the Court that he was having trouble with his life. He saw that his brother, the father, seemed to be living a far more peaceful life than he had done ever before. Mr M wanted that sort of “peace” for himself.
Mr M said that he contacted the father and told him that he wished to come to Brisbane and give the “religious life a shot”. The father had responded that he would welcome Mr M.
However, when Mr M arrived he stayed at a house of the group with a person named “Mr K”. Mr M noted that the father wasn’t there. Mr M was told by “Mr K” that he was not allowed to see the father whenever he wanted.
Over the next four days, Mr M saw the father on two occasions and never alone. Mr M said that he was told that he was not allowed to do certain things. For example, Mr M said that he had been made to stay in a room all day and to read the Bible. When he wanted to leave the room to “shoot some baskets”, he was told that basketball was “not God’s way”.
Mr M refused to conform. He told “Mr K” and the rest of the group that he didn’t want to come to God in this way. Mr M said that the group became frustrated with him. He said that they wanted him to weep and to confess his sins.
He said that during his time there, he saw quite a lot of preaching and many of the men weeping and confessing their sins in “testimonies”. These testimonies were very specific and somewhat graphic. He estimated that there were about 15 people, including six children, in the group.
Mr M said that he saw no aggressive behaviour during his time but the group certainly became angry at him when he would not give a “testimony”. Mr M said that he knew when they got angry that he had to leave.
In his affidavit, Mr M explained why he believes that it was not in the child’s best interests to be involved with the group of the father. Mr M said that he had “witnessed the (group) members control over the (the father) telling him where to work, where to preach and I know that the (group) have full control over (the father)’s emotional and physical environment”.
Mr M said that the father had been told by his group that the family and friends of the father did not truly love him and that they are fake, selfish and that they want the father to be his old self.
In cross examination, the father asked Mr M about text messages that the father had received from Mr M. The father claimed that such text messages (which are annexed to the affidavit of the father sworn 4 December 2017) illustrate that the brother did find spiritual assistance with his group.
However, the important part of the text message was that Mr M told the father that he was keeping God involved more in his life with church and “I know it isn’t with you and the group but it’s Christianity under (omitted) Bible. I turned away from your group but not you and God”.
The father acknowledged at this point that he is a part of his group and that he cannot be separated from them.

Issues Regarding the Father

A major problem with the father is that the beliefs he holds are rigid and unwavering. But this is because he has learnt them “by rote”. He has not come to these views through any personal questioning or exploration. These beliefs are not evolved but beliefs that have emerged fully formed after the “conversion”.
The father, and his group, holds adamantly to the notion that the (omitted) of the Bible is the only true version. The father appeared somewhat stunned when I explained to him that this version of the Bible is only about 400 years old.
The father had no conception that this version of the Bible came about because of the rise of the use of the vernacular during a period where the (omitted) churches were emerging out of the (omitted) Church. The father had no inkling that the Bible is a group of texts written originally in Aramaic and Greek.
The father has also no conception of the context in which the Bible was written and the use that is made of hyperbolic text.
The father has made no enquiries himself about issues involving the Scriptures. It seems that he is content to accept what it is that has been told to him about these matters.

Observations of the Group

In the original Child Inclusive Conference memorandum, family consultant Ms T noted that the father’s descriptions of how he or other group members receive the Word of God indicated a process for group consultation to establish if it was genuinely a message from God and if other group members could confirm hearing the message.
In the family report of Ms V, it was noted by Ms V in paragraph 82:
“That some decisions are made jointly and members are inclined to act together. In addition, over the past 18 months, (the father) has demonstrated that he will act in accordance (with) the views beliefs and guidance of other group members”.
In this trial, the father gave evidence that the group was able to discern the Will of God. He said that there were never any disagreements amongst the group. What the father describes occurring smacks of “group think”.
In her family report, Ms J describes “group think” at paragraph 94 of her report:-
“Group think is a psychological phenomenon that occurs within a group of people in which the desire for harmony or conformity in the group may result in an irrational or dysfunctional decision-making outcome. Group members are at risk of suppressing dissenting viewpoints in an attempt to minimise conflict. As a result, expressed views may be accepted by the group without any critical analysis or evaluation, and views are unlikely to be challenged.”
When one combines these observations together with the testimony of Mr M, one inexorably comes to the conclusion that the group is extremely controlling. In that respect, the description that many have given to the group is apt; the group is a cult.

Contentions of the Mother

The mother has raised many concerns during the course of this litigation. She still harbours fears as to what this cult is capable of doing. However, much of what the mother contends has no actual basis on the evidence.
The mother originally believed that the father have the capacity to offer the child as a sacrifice to God. This seems to have come from a misapprehension of what the father may have said about the biblical story of Abraham and Isaac. Without belabouring the point, it is obvious, on the evidence, that the father would never do anything that would physically harm the child.
The mother described the beliefs of the father as having crossed the line so as to become dangerous. The mother said to Ms J that she was of the view that the group condemn and discriminate against those with other beliefs and use force to recruit members.
The mother described the behaviour of the father, in attempting to recruit persons or in preaching to the public, as being violent.
I have watched the three YouTube videos (Exhibit 3) that depict the father and/or members of the group preaching to the public. I have also listened to a recording that the mother made of a phone call that she had with the father (Exhibit 4).
The father’s behaviour could never be described as “violent”. He is very passionate but would not resort to physicality to get his point across.
In the phone call that was recorded (Exhibit 4), the father talks of hoping that Jesus “kills” the mother. The way in which the father says this shows that he did not mean a physical killing but rather a metaphorical killing so that the mother could be “reborn”.
While this may have been distressing for the mother, when one looks at the proper context in which the conversation occurred, there is little for the mother to be truly concerned about.

Street Preaching and Demonstrations

This issue took up a great deal of attention during the trial. This is because Exhibit 3 depicted a member of the father’s group, Mr B, demonstrating at a rally in favour of same-sex marriage. Mr B had his two children, aged nine and seven, front and centre with him during this activity.
There can be no criticism of Mr B demonstrating and preaching at a rally such as this. However, involving children is a dangerous matter.
Involving children in any political or controversial issue is fraught with danger, especially if this is done during public demonstrations. Children have neither the intellectual maturity, nor sufficient experience to be able to weigh up issues for themselves and come to personal conclusions. They also cannot have a proper appreciation of all of the issues. The last, they cannot truly understand the environment that obtains at such public demonstration.
In situations where emotions can run high, such as the issue of same-sex marriage, it would be unsurprising to find that persons on either side of this debate could use heated language, and may even resort to violence. For parents to allow children to be part of such situations is the height of irresponsibility.
There was a concern during this trial that the father would put the X into a similar situation as Mr B put his children. The father’s immediate reaction was that “God would not allow the child to be put in harm’s way” and therefore any concern was misplaced.
Thankfully, the father has retreated from this stands to a point where he now accepts that he should not involve his child in such activities.

The Family Reports

In this matter I was greatly assisted by the family report of Ms V and the later family report of Ms J. Both report writers focused on what was in the best interests of X.
Ms V noted the following:
“84. A key consideration is the parents’ vastly divergent values and lifestyles and their subsequent beliefs about how X should be raised. Ms Nilssen fears the implications of Mr Kenwood’s religious beliefs and practices for X and worries he will be ‘turned against’ her as her beliefs and lifestyle are considered ‘sinful’. Mr Kenwood denied he would involve X in biblical teachings about sin at this stage of his development. He identified age-appropriate constructs such as teaching about God’s creations while focussing on building and cementing the father-child relationship and facilitating X’s development in mainstream spheres. He demonstrated a capacity to do the latter two well during my observations and at the contact centre.
85. Mr Kenwood concedes that, as X matures, he would teach him about religious concepts (such as good, evil and sin) according to the biblical scriptures. This does have the potential to create problems in a shared parenting context, particularly if maternal family members are highlighted as ‘sinners’. X’s level of cognitive maturity will influence his capacity to understand that his parents simply have different views about the way in which life should be lived. Before adolescence it may be a difficult task and probably quite confusing for him. At any age, it is possible X will feel caught in the middle and inclined to align with one parent’s position over the other. This is particularly likely in the current scenario; where the parents’ views and lifestyles are so polarised and neither is tolerant or accepting of the other’s position.
86. Another factor with implications for the co-parenting dynamic is Mr Kenwood’s religious belief that, while women have input, men are ultimately in charge of decisions. The belief is contrary to the notion of equally shared parental responsibility…”
In my view, Ms V has highlighted the problem very well. The father unfortunately associates the scene with the sinner and cannot differentiate between the two. Children do not see things in this way; they will often love the sinner yet hate the scene. Whilst the father continues to identify the sinner and the scene, this will create an internal anxiety for X.
Ms J noted the following:
“83. While I believe the Mr Kenwood’s love and concern for his son are genuine, it is my concern that his beliefs about what is best for X are very narrow, inflexible and resistant to change. Consequently, in my opinion, the father’s strict views are likely to impair his ability to support the child to make his own choices, and to allow the child to follow his own path in life.
84. In my opinion, Mr Kenwood’s firm belief that his own conscious thoughts are the direct will of God leave little room for negotiation, or compromise, on any issue. As such, it is my assessment that Mr Kenwood’s beliefs, and subsequent lifestyle, are very rigid; and do not appear to allow for discussions and joint decision-making on issues on which the parents may disagree. This is likely to present a significant challenge for the parents to share parental responsibility.
…
87. As such, I except Mr Kenwood would experience significant anxiety over the consequences of X if X were to partake in some behaviours, which may be considered acceptable in modern Australian society, however are considered sinful by Mr Kenwood.
88. While Mr Kenwood reported an intention to talk to X about any such issues, it is my concern that Mr Kenwood’s firm beliefs would not allow him to accept any response outside of X’s complete submission to his views. In my opinion, Mr Kenwood’s genuine desire to protect his child would motivate him to repeatedly minster to his child, in full belief of his own convictions.”

The Risks for the Child

At the outset of this trial, the issue was framed that this was a matter of whether the father’s religious convictions were a risk to the child. I do not accept that this is a proper framing of the issues. I cannot see that the religious beliefs are of any risk to the child. However, the practices of the father are a different matter altogether.
The manner in which the father is now living is not religious. On the surface it may appear that religion is claimed the biggest part in the life of the father. But that appearance is only superficial. When one burroughs below the surface, it is obvious that religion is used as a covering device. The father’s life is now about control and being controlled.
Therefore it is not the part that religion plays in the father’s life that must be assessed for risks to the child but rather it is the controlling and controlled aspects of the father’s life that must be assessed.

Application of the Act

The principles governing the Court’s determination in this matter are set out in the Family Law Act 1975 (hereafter “the Act”).
Section 65D of the Act subject to s.61DA (“the presumption of equal shared parental responsibility”) and s.65DAB (“parenting plans”) gives the Court the power to make a “parenting order”. A “parenting order” is defined by s.64B of the Act.
In deciding whether to make a particular parenting order s.60CA requires that I must have regard to the best interests of the children as my paramount consideration.
In determining what is in children’s best interests I must consider the matters set out in s.60CC(2) the “primary considerations” and s.60CC(3) the “additional considerations”.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Act indicates that these considerations are to be considered as having particular importance. They are described as “primary” and, as a note to s.60CC indicates, are consistent with the first two “objects” of Part VII, as stated in s.60B that the best interests of children are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests and protecting them from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
There are 14 “additional considerations” set out in s.60CC(3) which I will refer to later in detail in these Reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s.60CG).
I will also be guided by s.60B which sets out the objects of Part VII of the Act and the principles underlying it.

Application of law to the circumstances of the case

I must now consider the application of the legal principles in the circumstances of this case namely the background facts and the findings I have made and how they apply in determining what parenting orders are most likely to promote the best interests of X.

Primary considerations – section 60B

Turning firstly to the application of the primary considerations namely;
a) the benefit to the child of having a meaningful relationship with both parents
b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
My conclusion as to these primary considerations are in summary:-
a) It is important to X that he has a meaningful relationship with both his mother and father, and
b) There is a need to protect X from being exposed to the risk of family violence, harm or abuse and that is psychological abuse.
My reasons for reaching those conclusions are as follows:
a) Both parents to their credit acknowledge that it is important for the child to have a meaningful relationship with the other parent. They have both have a committed involvement as parents in the child’s lives.
b) There is substantial evidence of the father being unable to understand that there is a real chance that he may be wrong about aspects to do with the raising of the child. Because the father believes that he is guided by the will of God, he cannot countenance that anything he does could be wrong. This will inevitably lead to the child concluding that his mother is an inferior being. To my mind, this qualifies as psychological abuse.
I treat these primary considerations and my findings as being central to the structure of the orders that I ultimately propose to make with respect to the best interests of X. Obviously, s.60CC(2A) does have relevance here.

Additional considerations – section 60CC(3)

Going through the considerations seriatim, I find as follows:-
a)In my view, the child is too young to be able to form any firm and considered view about this subject.
b)Since the reintroduction of the father to the child, the relationship has blossomed. I have read the reports from the contact centre as to how the “book ended” time has been proceeding. I accept that the child has a very good and loving relationship with the father. The relationship that the child has with the mother is an extremely strong relationship.
c)I have taken into account that the father “abandoned” the mother and the child when he left with members of his group on 23 March 2015. I accept that the father had a choice as to whether to have a life with his group or have a life with the mother and the child. The father wanted to have both. This was not going to be realistic and the father chose his group over the mother and the child. The father attempts to view this choice as a choice between the mother and child or God. This is a fallacy. There was a period of six months where the father had no contact with the mother or the child. The father had contacted the mother again in March 2016 and had one visit with the child. The mother began these proceedings in May 2016 and it would be speculative to extrapolate as to what role the father would have sought in the child’s life if the mother had not commenced these proceedings. However, once the proceedings did commence the father has utilised every opportunity that the Court has given to interact with X.
ca)The father is now paying some form of child support though his financial position is very vague. Since separation, it has been the mother who has truly maintained the child.
d)I have looked at this consideration however it bears little to no relevance to the current situation.
e)This aspect has little weight in this situation. The focus of my deliberations has been what effect would the increased time that the father seeks have on this child.
f)I have considered what skills the father actually has to provide for the needs of X especially his emotional and psychological needs. The impact of the practices of the father’s group and how that will impact the child have been foremost in my mind.
g)I have taken into account that X has (omitted) heritage from the father. The father now rejects that heritage because of its paganist rituals and will not do anything to let the child understand his cultural origins. The mother has said that she will liaise with other members of the father’s family to ensure that the child has some connection to his cultural roots.
h)This circumstance does not apply
i)The father has testified that the Bible has laid out the responsibilities of a father and that he would appropriately parent the child accordingly. The thinking of the father, however, is rigid and yielding. The responsibilities of parenthood often need adaptation and recalibration. The mother has demonstrated that she can live up to those responsibilities.
j)Before the fathers “conversion”, there would be justifiable concern as to family violence. Even though he somewhat dishonestly refuses to accept the extent of that previous behaviour, I do not see that family violence looms as any great issue in the future.
k)The mother has an application for a Domestic Violence Order pending in the Southport Magistrates Court. That application has yet to be determined and so none of those matters coming to my determination.
l)I am mindful that I should make orders as far reaching as possible so as to avoid any further litigation.
m)I have detailed, in these reasons, all matters that I consider relevant.

Parental responsibility

Under s.61DA(1), when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for their parents to have equal shared parental responsibility for them. The presumption does not apply however if there are reasonable grounds to believe that a parent has engaged in abuse (including psychological abuse) of the child, or family violence.
In this case, having regard to the findings I have the presumption has been rebutted. It is still a matter for me as to whether, notwithstanding that there is no presumption, an order for equal shared parental responsibility is in the best interests of X.
The essence of equal shared parental responsibility is that the parents can communicate so as to effectively co-parent the child. In the present case, the father has the unshakeable conviction that what he thinks and what he does is the will of God. He cannot conceive of any situation where there may be a view that is divergent from his view. That is because his view is synonymous with the “view of God”.
I cannot concur with the father’s belief. I cannot think that it was the “view of God” that the father not be open and frank in his affidavit about the role of members of his group in his “conversion”. I cannot think that it was the “view of God” that the father did not confess his liability for the grotesque behaviour in anally raping the mother. I cannot think that it was the “view of God” that the father should hide behind the defence of “I was so intoxicated with liquor or drugs that I cannot recall committing those heinous acts upon the mother”.
I cannot see how there could be effective communication between the mother and the father. I cannot see how there could be any “give and take” between the parents when discussing important aspects of the child’s life and development.
Therefore, in the best interests of the child, there should be an order for sole parental responsibility. Given the shortcomings of the father, it is my view that sole parental responsibility should rest with the mother. That does not mean that she should exclude the father from decision-making; rather that she should discuss matters with him and inform him of her views. The mother should take into account all that the father has to say on a particular issue but, if there is no agreement, the mother’s view must prevail.

Time with each parent

Originally, the father sought that the child live with him and spend reasonable time with the mother. That view has now changed. The father is working full-time during the week and has the weekends free. There has been a quasi-admission that the father cannot look after the child during the week and that this burden must fall to the mother. The father now proposes that he spend every weekend with the child, from Friday afternoon until Monday morning.
The mother proposes that the current arrangements prevail with there being a gradual increase in time. At the present, the father has a period of time with the child that is supervised at a contact centre for 15 minutes. He is then allowed to leave the contact centre to spend time with each of the four hours and then he returns the child to the contact centre where another 15 minutes is supervised before the visit concludes.
Given the contents of Exhibit 9, I do not see the need for such supervision to continue for much longer. That supervision has served its purpose and it is time that the parents take control of the situation for themselves. The time of the visits should increase to six hours.
As to whether this time should increase to a greater amount is still problematic. The father submits that there is no danger for the child to be exposed to the practices of his group. The father submits that the child should be able to live with the father and to interact with persons who give the father fellowship and support.
The question for me is whether such a regime is in the best interests of X.
In coming to my final conclusions, I have also been guided by the objects and principles set out in s.60B, quoted earlier.

Conclusions on parenting

The father claims to now be cleansed of his sins and that he lives as a “saint” doing the works of God. And yet he was less than frank in his first affidavit where he talked of his conversion as if to hide the true role of the four men who were instrumental in his change of life.
The father still refuses to acknowledge the despicable acts of sodomistic rape that he committed upon the mother. I accept that the mother has told the truth about these matters and that the father is being untruthful when he says that he has no memory of those events.
The mother had been concerned that the father’s group was linked to the notorious Church of (omitted) which is based in the (country omitted). The father vehemently denied such a connection to the family report writer, Ms J. Yet in evidence before me, the father conceded that there was a connection between that “church” and his own group.
For all of the father’s proclamations of being a new person who acts with the spirit of God dwelling within them, he is someone who is still deceitful and has abandoned his individuality.
It is clear to me that any overnight time with the father will lead to the child being introduced to members of the cult. Once that happens, the cult mentality takes over and the child will be subjected to the wishes of the cult under the guise that their directions are “the will of God”.
If this happens, X will slowly surrender his individuality. His individuality is too precious gift to be given away and yet, at his tender age, there will be nothing that the child could do about such surrender when faced with the overwhelming ideology from the cult.
For these reasons, I am of the view that there should be no more than the eventual six hours contact between the child and the father every alternate Saturday and on special occasions.
I am also of the view that there needs to be injunctions ordered partly in terms as suggested by the independent children’s lawyer. I do not see that the child should be prohibited from being exposed to religious material but it is necessary to shield him from the interpretation of the Bible promulgated by the father or any of his associates.
I also do not believe that prohibiting the child from hearing persons referred to as “sinners”, “heathens”, or “fornicators” is practical. However, I am of the view that those invectives should not be used to describe anyone associated with the child because to do so would be to denigrate those persons. As a prohibition against denigration of either parent will be part of the orders that I make, I do not see the need to make a further injunction about such issue.
I am of the view that the injunctions that I do order should stay in place until X turns 14 years of age.
While I have accepted that there are inherent dangers for the child in the lifestyle of the father, those dangers are quite different to the dangers expressed by the mother. It seems to me that the mother has made some illogical conclusions based on what she believes are the facts.
To ensure that those concerns do not affect the child, I am of the view that the mother needs to undergo counselling. Whilst I am loath to order such counselling, I have been told that the mother is agreeable to such an order and the Independent Children’s Lawyer also wishes the counselling to be part of the order I make.
The orders I have made should reflect the conclusions I have made.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for judgment of Judge Vasta

Date: 22 December 2017

[2017] FCCA 3264

22 December 2017

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Consent

Procedural Fairness

Remedies