NIMEIRI & BABIKA

[2015] FamCA 296

FAMILY COURT OF AUSTRALIA

NIMEIRI & BABIKA [2015] FamCA 296

FAMILY LAW – CHILDREN – With Whom a Child Lives – Abuse and family violence – Relocation – Where parties were accepted for refugee settlement to Australia in 2007 – Where neither party legally represented at trial – Where English is neither parties first language – Where Court noted guidelines for dealing with self-represented litigants – Where father has been physically violent against the mother during the relationship and forced her to have sex with him – Where Court satisfied the father has been domestically violent towards the mother in the past – Where father’s controlling and domineering behaviour continued after separation - Where such behaviour substantially unsettles the mother and erodes her general ability to cope and hence parent – Where father suffers from paranoia and other personality issues – Where Court satisfied there is some risk associated with the father to the children but is not persuaded such risk is at an unacceptable level – Where mother is able to obtain employment in South East Queensland – Where mother unable to obtain such employment in current place of residence - Where Court noted that if the mother were to be able to gain employment it would transform her life and the children’s life for the better – Where Court satisfied relocation would provide substantial benefit to the mother and in turn the children – Where Court ordered the mother be permitted to relocate – Where regime of orders provided for the father the spend time with the children in the event the mother does relocate.

FAMILY LAW – CHILDREN – With Whom a Child Spends Time – Where children previously spent supervised time with the father at a Contact Centre – Where interaction between the father and the children at the Contact Centre was awkward, and in the nature of instruction or an interrogation rather than a usual child/parent interaction – Where father has on occasion not showed up to Contact Centre - Where such time at hearing was suspended by consent – Where Court noted it is in the best interests of the children to allow some ongoing experience with the father in a safe environment – Where order providing for supervised time with the father for 12 months after which time the supervision requirement is not justified.

FAMILY LAW – CHILDREN – Parental Responsibility – Abuse and Family Violence – Where presumption does not apply – Where Court noted the only appropriate order can be one that reflects the children’s living arrangements and that any other order would be unworkable – Where all parties want the children to live with the mother – Where Court satisfied it is in the best interests of the children that the mother have sole parental responsibility.

FAMILY LAW – INJUNCTIONS – Where father has a long history of complete disregard for any formal constraint in seeking time with the children – Where mother needs to be free of the prospect of the father turning up at any time – Where order restraining the father from spending any time with the children or from having communication with them other than provided for in the orders.

FAMILY LAW – INJUNCTIONS – Personal Protection – Where father has concerning history of controlling behaviour – Where Court satisfied personal protection orders for the mother and children are appropriate.

Family Law Act 1975 (Cth) ss 60B, 60CA, 61DA, 65DAA, 65DAC, 68B, 68C, 114, 122AA
Evidence Act 1999 (Cth) s 140

Bayer & Imhoff [2010] FamCA 532
Harridge v Harridge [2010] FamCA 445
M v M (1988) 166 CLR 69
Mauldera & Orbel (2014) FLC 93-602
N & S & The Separate Representative (1996) FLC 92-655
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170
Re Andrew (1996) FLC 92-692
Re F (Litigants in Person) (2001) 27 FamLR 517
Sedgley v Sedgley (1995) FLC 92-623
Wacando v The Commonwealth (1981) 148 CLR 1

APPLICANT: Ms Nimeiri

RESPONDENT: Mr Babika

INDEPENDENT CHILDREN’S LAWYER: Ms Lehmann

FILE NUMBER: CSC 545 of 2010

DATE DELIVERED: 23 April 2015

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 3 & 4 February 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Ms Wilson

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER Lehmann Featherstone

Orders

1. All previous parenting orders are discharged.

PARENTAL RESPONSIBILITY

1. The mother have sole parental responsibility for the children B born … 2000; C born … 2005 and D born … 2010 (“the children”).

LIVING ARRANGEMENTS

1. The children are to live with the mother.

RELOCATION

1. The mother is permitted to relocate with the children within Australia and away from the E Town area.

TIME AND COMMUNICATION WITH THE FATHER

1. Until 24 April 2016, provided that the children are living in the E Town area, the children C and D are to spend supervised time with the father for a period of two hours on the second weekend of each calendar month, and, at the election of the mother this time may occur either:

   (a)at the E Town Contact Centre; or

   (b)with such other supervisor as the mother may appoint.

2. To effect order 5 above, the mother will provide the father with a minimum of seven (7) days notice (via text message) of the venue at which the children will spend time with him.

3. If the father is not at the venue nominated by the mother under order 5 within 15 minutes of the nominated time, the mother may cancel the said arrangements and leave with the children.

4. After 24 April 2016, and for so long as the children are living in the E Town area, the children C and D are to spend unsupervised time with the father on the second Sunday of each calendar month, between 9am and 1pm with changeovers to occur at the E Town Contact Centre.

5. To effect order 8 above, the mother will provide the father with a minimum of seven (7) days notice (via text message) of the dates and times when the children will spend time with him.

6. If the father is not at the Contact Centre within 15 minutes of the time nominated by the mother, she may cancel the said arrangements and leave with the children.

7. In the event that the mother and father do not live in reasonable proximity to each other, orders 5 and 8 above will not apply and instead the time the children C and D are to spend time and communicate with the father as follows:

   (a)the mother will facilitate either telephone or Skype contact between the children and their father on one occasion per month with the mother to provide the father with reasonable notice of such arrangements, provided that the mother may terminate any such communication if, in her view, its content is inappropriate;

   (b)until 24 April 2016, the father may spend two hours of time with the children, during each school holiday, either at the Contact Centre of the mother’s choosing, or supervised by such other supervisor as the mother may appoint, at a time, date and place nominated by the mother (noting that the mother may elect a venue outside of the E Town area and that she is not obliged to make any arrangements unless at least five weeks prior to the commencement of the relevant school holiday, she receives confirmation from the father that he will avail himself of such arrangements as she may organise);

   (c)after 24 April 2016:-

   (i)     the father may spend unsupervised time with the children over three consecutive days in each school holidays, between the hours of 9am and 1pm;

   (ii)    changeovers are to occur at a Contact Centre of the mother’s choosing;

   (iii)     the mother is to provide the father with a minimum of 28 days notice (via text message) of the dates when the children will be made available (noting that she is not obliged to make any arrangements unless at least five weeks prior to the commencement of the relevant school holidays, she receives confirmation from the father that he will avail himself of such arrangements as she may organise;

   (d)If the father is not at the Contact Centre within 15 minutes of the time when either he is due to commence to spend supervised time with the children, or to effect changeovers for unsupervised holiday time, then the mother may cancel the arrangement and leave with the children.

8. If the father fails to attend the Contact Centre, whether for supervised time, or to effect changeover for unsupervised time, for three consecutive occasions, then the mother may thereupon suspend the father spending further time with the children under these orders, unless and until the father advises her that he wishes to resume spending time with the children.

9. The father is to meet any and all costs associated with the parties’ use of any Contact Centre under these orders.

10. Irrespective of where he is living, the child B is not required to spend time with the father unless he expresses a desire to do so.

RETRAINTS AND PERSONAL PROTECTIONS

1. For the personal protection of the mother and the children and pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth) the father is prohibited and restrained from:

   (a)harassing, molesting or stalking the mother and the children;

   (b)causing or threatening to cause bodily harm to the mother and/or the children;

   (c)approaching the mother and/or the children at their place of residence from time to time, their employment from time to time or coming within 50 metres of those places other than as provided for in these orders;

   (d)spending time with or attempting to contact or approach the children or attending the children’s school or any of the children’s extra-curricular activities from time to time other than as provided for in these orders.

2. It is noted that pursuant to s 68C and s 122AA of the Family Law Act, where a police office (Federal or State) believes, on reasonable grounds that the father has since the injunction was granted, breached the injunction by:

   (a)causing or threatening to cause bodily harm to the person or persons referred to in order 15; or

   (b)harassed, molested or stalked any one or other of those person,

   the police officer may arrest the father without warrant and may use such reasonable force as is necessary to make the arrest or to prevent his escape after the arrest.

3. The Independent Children's Lawyer is forthwith discharged with the thanks of the Court, upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

4. Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases.  

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nimeiri & Babika has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT E TOWN

FILE NUMBER: CSC545/2010

Ms Nimeiri

Applicant

And

Mr Babika

Respondent

REASONS FOR JUDGMENT

LACK OF LEGAL REPRESENTATION FOR THE PARTIES  

1. The background to this case is one of unimaginable horror.  When he was about 22 years of age, the parents of Mr Babika (“the father”) and all of his siblings were killed during the Country F genocide; when she was 12 years old, the parents of Ms Nimeiri (“the mother”) and seven of her siblings were also killed in the massacres, leaving only one of her brothers alive.  Both parties suffered greatly from the trauma of exposure to those and many other such deaths. 

2. The parties were accepted for refugee settlement to Australia in 2007.  At the time they spoke little or no English, and it is still not their first language. 

3. It could not be expected that either of them have any familiarity with court proceedings generally, much less courts based upon the adversarial common law system.  There is no reason to think that they would have even a cursory knowledge of the Family Law Act, or the complex concepts, principles and procedures established by it.

4. These proceedings concern the parties’ three children.  The orders which the mother and the Independent Children’s Lawyer seek would substantially restrict the father’s time with the children.  Both parties’ rights are at risk.  The children’s futures are also at stake.

5. Although at earlier stages of the proceedings both the mother and father had legally aided lawyers, by trial neither were legally represented.

6. Whilst the Full Court has given instruction to trial judges as to how they must assist self-represented litigants in Re F (Litigants in Person) (2001) 27 FamLR 517, there are limits to the practical effectiveness of such judicial assistance or intervention where there are cultural, linguistic and knowledge barriers, to say nothing of concerns about a party’s psychological functioning. 

7. Further, the mother alleges that the father has often raped her, and been otherwise domestically violent and controlling of her.  Being self-represented meant that the father got to cross-examine her himself, and the mother likewise had to answer to, and then cross-examine, her alleged abuser.

8. No one could seriously contend that either the mother or the father in these proceedings have been able to properly present their cases, despite my efforts to assist them to do so.  In a system of laws and litigation largely designed by lawyers, mostly with a view to being used and utilised by lawyers, parties such as these are at an incalculable disadvantage and wholly out of their depth.  That each was in an identical predicament is no consolation.

9. Further, it is no answer to say that there was also appointed in the proceedings a legally aided Independent Children's Lawyer, who at trial was represented by counsel.  Patently her role was to advance the interests of the children, and not the interests of the parties.

10. Unfortunately, unlike in criminal cases where a court can refuse to proceed upon an indictment where the absence of adequate legal representation for the accused creates injustice, in family law proceedings no such mechanism is available to the court.  However the need for provision of adequate funding for children’s matters, is at least equal to, if not greater than, criminal law matters.  These parties are amongst those most in need of legal assistance.  That neither of them was apparently able to procure representation for this trial is a serious problem worthy of judicial outcry, and genuine community concern.

INTRODUCTION

1. These proceedings relate to the appropriate parenting orders for the parties’ three children, B born in 2000 (and hence presently fourteen years of age) C born in 2005 (and hence presently ten years of age) and D born in 2010 (and hence presently four years of age).  

2. The mother seeks orders that she have sole parental responsibility for all the children, who would live with her and spend no time with the father, although there would be a regime of monthly telephone contact.  She also seeks to be able to generally relocate away from E Town, albeit not internationally. 

3. The father seeks orders for equal shared parental responsibility, and that the children live with the mother but spend time with him for some hours at church each Sunday.

4. Ultimately the Independent Children's Lawyer advocated for orders that the mother have sole parental responsibility for the children, and for them to live with her.   So long as she remained in E Town, the Independent Children's Lawyer sought orders that the children spend monthly supervised time with the father, save that B would not be required to spend time with the father unless he desired so to do.  However the Independent Children's Lawyer also supported the mother being permitted to relocate, and in that event sought a regime of orders for telephone or Skype contact once per month, and supervised face-to-face time during school holidays.  The Independent Children's Lawyer also sought a suite of injunctions against the father.

THE ISSUES

1. In the course of the trial the following distilled as the substantial issues which are likely to determine the outcome of this litigation:

   (a)What is the nature of the father’s relationships with the children, and what impact would any diminution of that relationship have on them;

   (b)What, if any, risk does the father spending time with the children pose to them;

   (c)What impact does, and more particularly will, any continued dealing with the father have on the mother;

   (d)What opportunities does the mother have away from E Town, and would pursing those benefit the children.

2. I will discuss those issues in advance of a general traverse of the s 60CC considerations, and ultimately consider their impact in determining where the best interests of the children lie.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children.  Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to section 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s.61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to section 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

1. Finally s.60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s.60CC.

2. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

The standard of satisfaction required

1. S.140 of the Evidence Act 1999 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

   (a)      the nature of the cause of action or defence;

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Therefore consistent with s 140(2), in taking into account the gravity of the  parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[1] 

   [1] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At [20]-[25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:

   "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony,
   or indirect inferences."

   His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.

   23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

   24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[2]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [2] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child spend no time with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. Re Andrew also discussed a further line of authorities, which upheld “no contact” orders being grounded, not upon a proved unacceptable risk of harm posed to the child by the parent, but rather where the other parent entertained a genuine, but not necessarily reasonable, belief that such a risk of harm existed.  The basis for such orders was not to protect the parent from the consequences of their belief, but rather to protect the child from those consequences, where doing so was in the child’s bests interests.  Thus in Russell v Close (Unreported, 25 June 1993) the Full Court held that where such parental anxiety was likely to impact adversely on that parent’s care-giving ability, the Court needed to take that into account.  A recent re-statement of that principle is in Bayer & Imhoff [2010] FamCA 532 at [177].

3. That approach was taken one step further by the Full Court in Sedgley & Sedgley (1995) FLC 92-623, in the context of the husband who had for many years intimidated the wife, failed to return the child at end of access periods and otherwise behaved in an intimidating and bullying way with no regard to compliance with Court orders. At 82,259 the Court said:

   Whilst the welfare of the child might require some continuity of contact with a non-custodial parent, the need for peace and tranquillity in the custodial parent’s household may be a more compelling need for the child.

4. Plainly however as adverted to by the Court in Sedgley itself, a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.

THE FACTS

The father

1. The father was born in 1972 and therefore is presently 43 years of age.  He was born in City G in Country H, being the fourth born child in a sibship of seven.  His father was a Christian pastor stationed in Country H at the time, however the family fled from there when the father was only three years of age to return to Country F, following an edict from the then President of Country H requiring all clergymen to leave within 48 hours. 

2. The father completed his schooling in Country F in 1993.  However soon after extreme ethnic violence developed in Country F and on one night in July 1994 all of the father’s family were killed in the Country F capital of Kigali.  The father immediately fled to the west of Country F and travelled approximately 600km on foot, to the Country I.  Late in 1994 he commenced studying at the University of Country I, seemingly having been taken in by some missionaries who had known his family.  He studied at university until 1996 in subjects including psychology, sociology and anthropology.

3. However the Country F conflict spread to Country I and between 1996 and 1998 a further 500,000 Country F refugees were killed there.  The father was a witness to some of the massacres.  He then joined a large swathe of refugees who travelled many thousands of kilometres over a six month period, apparently with little sleep.  They were heading for a settlement called City J on the western border of the Country I, although it appears as though the father also diverted to another city en route.  He eventually arrived, and lived in a refugee camp there.  However the war continued and even City J became unsafe, or at least it was dangerous living in the refugee camp.  It was while the father was in that refugee camp that he and the mother first met, although they did not then form a relationship.  The father left the refugee camp a short time later and went to live in City J itself, however later moved to Country K when the war started to reach City J.  It was in Country K that he became reacquainted with the mother, who had been evacuated to there from the refugee camp near City J.  That was in 1999.  They commenced their relationship in 2000.

The mother

1. The mother was born in 1982 and is therefore presently 32 years of age.  She was born in Country F.  With the outbreak of the Country F war the mother, her parents and siblings left Country F to live in a refugee camp.  However during the ensuing conflicts, both of her parents and seven of her eight siblings were killed.  She told the Family Report writer, Mr P, that she “saw a lot of killing.”  She said “I’ve tried to forget about all that; and not to talk about.  Because I couldn’t really sleep properly for a year; and I was crying all the time.”  At some stage she went to the refugee camp near City J and then onto Country K.

2. When living in Country K, initially she was “living with a horrible family who used to beat me a lot.  And the father [ie the father of that family] was abusing me sexually; and he raped me many many times.”  Although she wished she could kill him, he was too large a man.  In the end she told the wife of the family what had occurred, however she was not believed and the father [of that family] continued to beat her.  By then she was reacquainted with the father, and he offered to share his home with the mother and her sole surviving brother Mr L (“Mr L”).

The relationship

1. The relationship appears to have commenced with a degree of secrecy.  Notwithstanding that the father had only invited the mother and Mr L to share his accommodation with him, in fact the relationship also secretly started straight away.  Perhaps because each of the three people in the home had their own bedroom, Mr L was unaware that there was a relationship between the father and the mother.  He described that he was “shocked” when after only a little time living together, he found out that the mother was pregnant to the father, with what was to be B.  Even though he continued to live in the same house as the mother and the father, Mr L refused to talk to either of them for a long time.

2. Mr L gave evidence before me.  His evidence was two distinct parts; the first was his affidavit filed 18 February 2013; the second was his evidence given in cross-examination.  It is appropriate at this point to record that his evidence, particularly when being cross-examined by the father, was impressive.  In the end, a form of personal dialogue developed between him and the father during that cross-examination.  I accept the totality of his evidence, and where it conflicts with that of the father, prefer it.  That is because Mr L was willing to make concessions against interest, more than willing to concede his own mistakes and past poor judgments, and quite prepared to concede that the father had good points. 

3. Mr L’s evidence is important because it provides a third party’s view as to the relationship between the father and the mother.  Disturbingly, it is clear that from the outset, that relationship was one where the father exerted real control over the mother and particularly:

   ·Would lock her inside the house and take the key with him;

   ·Would not let her go to the market to buy foods or the like;

   ·Did not let her go and visit friends;

   ·Did not like it when people came to the house;

   ·Would get angry if anybody looked at her and would send them away;

   ·Would regularly come home drunk, perhaps indeed every night.

4. It even got to the point where the father was speaking “badly” to Mr L every night and questioning him.  Mr L got so sick of the abuse that he packed up his belongings and went to stay with his friends.

5. After he moved out, there was an occasion when the mother telephoned Mr L crying.  He went to the house and saw that she had blood on her face and mouth.  She told him that the father had hit her.  I accept that evidence and find that the father had done so.

6. At paragraph 22 of his affidavit Mr L said:

   [The father] would take a knife and lock the door and tell [the mother] he would kill himself and her if she left.  I saw him do that many times.  I could see that [the mother] was very scared.

   I accept that evidence.

7. The mother’s version of relevant events whilst living with the father in Africa is similar to Mr L’s, but contains far more detail.  Particularly she says that at one stage she moved to live with Mr L because of the father’s abuse, at which time he started seeing another woman.  She says that the father refused to acknowledge that the mother was his “wife” and told his friends that she was just a girl helping in the house.

1. When the other woman that the father was seeing found out about the mother’s existence, she came to the mother and apologised.  The mother spoke to the father about it, but he beat her.  She said:

   I had head injuries, my teeth were loose, had to cut my hair off to treat the wounds on my head, my eye was swollen.  The respondent would not take me to the doctor and he would not let me out of the house.  He told me he was ashamed for what he did.

   I accept that evidence as truthful.  I reject the father’s denial of it.

2. The mother further says that in the course of that assault the father pushed their young child B against the wall.  She then said that she could not go to the police in Country K where they were then living, because she would have had, in effect, no rights to complain in relation to the father’s conduct towards her.

3. She also said that the father commenced drinking a lot and became very violent when he was drunk.  He would constantly force her to have sex with her whenever he liked and would force himself on her regardless of whether she was crying.  She said this form of abuse followed them from Africa to Australia and never stopped.

4. I accept that evidence.  I reject the father’s denial of it.

5. Notwithstanding the above, and in part because the drugs the mother was then taking to stop her getting pregnant made her sick, she fell pregnant for the second time.  Again the father denied paternity and started going out and drinking even more.  The mother says that at that stage he would only come to the house to be fed and have sex and then leave again.  I accept that evidence and reject the father’s denials of it.

6. It appears as though at about this time the father commenced investigating the prospect of being sent to Australia as a refugee.  It may be that he only intended to leave Africa himself, and leave the mother and his two children there, but the evidence does not really permit me to so conclude.  Certainly I accept the mother’s evidence that she was only told that they were leaving Africa for Australia in three days’ time.  Apparently they did so and flew directly to E Town.

7. The mother says that the father tried to control her in Australia by threatening to send her back to Africa, and used that as a pretext to insist that she should do everything that he wanted her to do.  I accept the mother’s evidence of that, and reject the father’s denials.

8. Neither the mother nor father understood any English at all when they first arrived in Australia.  The father initially forbade the mother to go to any form of education here; eventually she enrolled in TAFE.  This made the father angry.  He did not trust her in public.  He insisted upon regularly having lunch with her at the TAFE college so as to, according to the mother, ensure that she did not have anything to do with other men.  I accept that evidence.

9. The father’s controlling behaviour continued.  Again he would not let the mother leave the home to go shopping on her own, and forbade her seeing a male doctor.

10. The mother had been contemplating – indeed planning – to leave the father, but she deferred that plan when it proved possible to sponsor Mr L to come to Australia from Country K.  He arrived in March 2010.  He moved in to live with the parties.  Ultimately the parties separated in July 2010.  Although initially planning on leaving the home herself with the children, ultimately the father agreed to leave.

11. Here again the evidence of Mr L is compelling.  At paragraphs 25 to 28 of his affidavit filed 18 February 2013 he said as follows:

    25. When I first got to Australia I didn’t support [the mother] to leave [the father] because I thought it was wrong, but then I changed my mind when I saw what was happening.

    26. I also saw that [the father] would not let [the mother] go and do stuff by herself, just like in Africa.

    27. I took [the father] aside and told him that they were always fighting and [the mother] was living in [C’s] bedroom and they had to separate.  I told [the father] that he should leave and let [the mother] and the children would be better off.  I also told him at that time that we weren’t going to see any lawyer or anything, but that I wanted him to let [the mother] have her peace.

    28. [The father] told me he said he was thinking about going but he would never do anything.  I would ask him when he was leaving and he would say he was going to one day.

Post-separation

1. Regrettably, notwithstanding their decision to separate, and the father having moved out of the home, he seemed to find it impossible to in fact stay away.  He kept on returning to the home unannounced.  That is not controversial.  That precipitated the mother taking the children to a shelter where she was living at the time when the parties’ third child, D, was born.  Ultimately the mother returned home again, but the father kept on calling in unannounced “just .. to say hello..”  The parties would inevitably argue when the father was at the house. 

2. At paragraph 32 of his affidavit of 18 February 2013, Mr L discussed the father’s paranoia.  He said that the father was convinced that people were trying to kill him and that there were agents of the Country F Government, or at least their associates, informing the Country F Government about him in Australia.  He refused Mr L’s offers of helping him get medical assistance to deal with the paranoia.  He even refused to admit that he had a problem.  “He would just say that people were coming to kill him” Mr L says.

3. This paranoid behaviour was observed by the Family Report writer, Mr P, on occasions; for instance in his Family Report filed 18 November 2014, he recorded that the father expressed concerns about copies of documents in Australia going back to African Governments.  Even in the trial before me the father expressed concern that the mother was using the eldest child B, when he had recently gone to stay with the father, to spy on him.

4. On the other hand, post-separation the mother appears to have taken great strides to adapting to the Australian way of life.  She has, no doubt with assistance, become increasingly independent.  She has learnt to drive a car.  She has only relatively recently set boundaries in relation to the father’s conduct, which I will detail later.  She appears to be the principal negotiator with school authorities and the like in relation to the children, who have some challenging behaviours.  She has formed a new relationship and has some career ambitions.

5. The father on the other hand appears to be quite isolated in his community with few, if any, friends and little by way of social activity.  The distinct impression I have is that he is struggling with his life in E Town, whereas the mother is, to a degree, flourishing.

6. These proceedings were commenced on 17 September 2010 by the mother.  Amongst the interim orders she sought was a restraint on the father attending her home address.

7. By consent orders made 11 May 2012 an interim regime of the children living with the mother but spending time with the father was created.  That established that the father would see the children each Sunday at church and for two hours on Wednesday and three hours on Saturday at a specific playground.  The time was unsupervised.

8. The mother filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on 15 October 2012.  The risk she identified arose from the father having threatened the mother that he could kill her, that he believes in honour killings, that the mother must stop the court proceedings and that he would kill her and any man she went out with.

9. On 15 October 2012 Benjamin J suspended the time which the father would otherwise spend with the children under the earlier consent orders.  Then on 23 October his Honour ordered that the father’s time with the children occur at the E Town Contact Centre on a weekly or fortnightly basis.  That was the regime of orders that prevailed at the hearing before me, save that at the end of the hearing, it was agreed by all parties that that order should be suspended.

10. The father has an awkward interaction with the children at the Contact Centre, which time proceeds more in the nature of an instruction or an interrogation, than a usual parent/child interaction.  However there have been practical difficulties with it from the mother’s perspective as well.  On occasion, the father simply does not attend.  He does not tell the mother of that beforehand.  The mother lives some distance from the Contact Centre.  Initially, after dropping the children off at the Contact Centre, she would return home.  However if the father did not attend, she had to, when contacted by the Contact Centre, turn around and drive straight back to pick up the children.  The cost of petrol is significant to her, particularly bearing in mind that the father pays no child support.  In the end she developed the practice of staying relatively close by the Contact Centre to save the double expense of fuel in the event that the visit was abandoned.  That was a substantial impost on her time.

11. Another difficulty arose with the Contact Centre visits, and that is that the father started to give the children relatively large sums of money, up to $100.00 each.  Perhaps unsurprisingly, the children kept the money.  They would buy things with it.  They had never had that sort of money before.  C then started stealing money from her mother and other children.  The children began to see spending time with their father as simply an opportunity to get money from him.  In consequence of all of that on 20 October 2014 I ordered that the father’s giving of money to the children be restricted to $5.00 per child per visit.

12. The father has not re-partnered.  The mother has re-partnered.  She does not live with the man in question, but spends substantial time with him.  He has children to a previous relationship.  It appears as though the children get on reasonably well with his children.

13. Apart from C’s stealing, the children have experienced some challenges.  B has been fighting at school.  He says that it is the product of bullying, but plainly he appears to be actively involved in the fighting.

14. Further, B and C have been fighting between themselves.  On occasions it seems that it is physical.  They are constantly arguing.  It seems to be far worse than the usual kind of sibling interactions.  

NATURE OF FATHER’S RELATIONSHIP WITH CHILDREN AND IMPACT OF CHANGE

1. The most recent observation of the father’s interaction with the children was by Mr P as recorded in his Family Report filed 18 November 2014.  At paragraphs 82 to 86 of that report Mr P said that the initial contact was characterised by formality and awkwardness, with the father apparently finding difficulty in knowing how to actively engage with the children.  Although a degree of comfort thereafter entered into the dynamic, it appears to have been in the nature of questioning by the father and one word responses from the children, and culminated after approximately ten minutes with the father ending the meeting.     

2. This appears to be consistent with the children’s experience of spending time with their father.  Both B and C complain that time spent with their father at the Contact Centre is more in the nature of instruction and teaching, not only of a direct educational nature, but also by reference to reading of the Bible.

3. Moreover I accept the evidence of the mother that when the father drops in unannounced from time to time to the home, he is not focused upon interacting with the children or building relationships with them, but rather upon engaging with the mother.  Further, there is the father’s ambivalence on his own part as to whether he, from time to time, intends to stay within the E Town region.  He appears not to have any strong attachment to the region, although that said he has not ever left.  The fact he would be leaving his children behind does not seem to be a major factor in his thinking.

4. Since Mr P’s last report however an important matter has occurred.  That is that B went to live with his father for a period of time.  The mother explained how that came about and it does not appear to be controversial.  B had been a difficult boy to discipline and was behaving poorly at school.  Part of the reason for the difficulty in controlling him lay in the fact that he would say to his mother that he did not need to obey her, as he could at any time go and live with his father.  In a sense, the mother then called his bluff.  She insisted upon him going to live with his father.  He did so.  It does not appear as though he enjoyed the experience.  After some weeks, he wanted to come back to live with the mother.  He was to an extent repentant, albeit that expressed itself as him blaming the mother for his predicament.  It turned out that his experience of the father was far from enjoyable: his father appeared to be far stricter than his mother when it came to letting him do things.

5. Of recent times the father has been particularly preoccupied with having B go through certain manhood rituals, including circumcision.

6. As to C, she reports some degree of ambivalence in that she identifies that she gets scared of her father when he gets angry.  She has difficulty falling asleep because she is worried that her father will kidnap her.  She has continually expressed a degree of uncertainty about seeing her father; for instance in the course of preparing the Family Report filed 29 may 2013, she ultimately said “so I guess I would like to see dad today; but only for a short time.”

7. To an extent, the father’s interaction and relationship with his children is strongly indicated by the orders which he seeks in relation to them: he only seeks that he spend time with them every Sunday at church.

8. In the course of his cross-examination I sensed a distinct probability that the father would not always be at church during those visits (and indeed he did not avail himself of those visits when they were ordered earlier in the course of this litigation).  Rather I had the impression that he thought the time, being at the venue of a church, would ensure that his children would attend church, which they have not apparently recently been doing in consequence of the father’s preoccupation with the mother if she is also at church.

9. Ultimately I conclude that in relation to all three children the father is not particularly child focused.  In consequence the children experience him as a somewhat angular character who tends to instruct them rather than engage with them.  The eldest two have strong recollections of his anger and aggression, and probably in the case of B, his violence.  They have been exposed to considerable hostility between their parents, and seem to associate that with their father far more than their mother.

10. It is not productive to speculate why it is that the father approaches parenthood in the way that he does; suffice to say that this is the end result.

11. The father spends little time with the children now in any event, and it does not appear to be in a particularly structured, reliable or regular framework.

12. Whilst I accept that the children will benefit from having some ongoing relationship with their father, in my view if there were to be some reduction in the time that they experience with him, or some greater distance between them which thereby of necessity caused a reduction in time, I do not think that the quality of the relationship will markedly deteriorate.

WHAT RISK DOES THE FATHER POSE TO THE CHILDREN

1. There are two species of risks which are relevant to this consideration.  The first is physical risk; the second is emotional risk.  The physical risk is said to arise from a combination of factors, but mainly the father’s paranoia.  Although the Family Report writer, Mr P, had concerns that the father might be suffering from Post-Traumatic Stress Disorder, a psychologist who the father consulted did not so conclude.  Nonetheless there are troubling presentations from time to time by the father.  For instance during the first Family Report interviews at paragraph 55 Mr P records that the father said to him “I am very uncomfortable seeing my children with security cameras, because I would never kill my children.”  Later, in his Updated Family Report, filed under cover of his affidavit on 29 May 2013, Mr P said:

   However, and based on his continuing reports, and notwithstanding a psychologist’s report of him not suffering PTSD; the writer formed a clinical opinion that the father does experience paranoid delusions; and moreover, likely suffers from long-standing and undiagnosed Personality Disorder challenges.

2. Earlier in that report he had referred to his interview with Mr L in which Mr L had said to him about the father “he has problems, and has had a problem for a long time but he tries to hide it here in Australia…  He imagines stuff, and he thinks it is true.  He is paranoid; and he always thinks things are wrong and against him.  He saw a lot of bad things in the war and he drinks too much.”

3. That was borne out in the interviews with the father himself.  He was concerned that the Country F Government still wanted to kill him as he was a witness to a number of killings.  He even refused to use interpreters at Centrelink who were of African extraction because they were likely to inform the Country F Government about him.

4. I am satisfied, as I have previously explained, that the father has been domestically violent with the mother in Africa in the past.  It also appears as though he has been violent towards B.  In the course of the Family Report interviews for the first Family Report in 2011 at paragraphs 75-6 Mr P recorded that B had said to him “I was a bit happy when they split up, because he kept on hitting me and screaming at me.  So I didn’t really miss him much.  Now, I don’t really miss him that much; but I would like to see him now and then.  But things are more happier at our place now with no more fights.”

5. At paragraph 77 Mr P noted:

   Notably, [B] next specifically alleged “one-time dad belted me and I slept for nearly three days, because I couldn’t wake up properly” and added “a bit of me is still scared of him.  And I want other people there when I see him (pause) because I don’t really feel safe.”

6. Mr P opined that B’s accounts of corporal punishment “did appear credible”.

7. However by the time of the most recent Family Report, B was expressing a desire to go and live with his father.  At paragraph 63 of that report Mr P quotes B as saying “is it possible to be with my dad; because he is not an argumentative person.  And it would be more peaceful with him.”

8. Moreover, there is the recent occasion when B went to live with his father for some weeks.  There does not appear to have been any violence meted out by the father towards B in that period.  Further, other than concerns arising from the father’s paranoia, there does not seem to be any manifest physical risk to the children associated with him. 

9. The Contact Centre notes do record that on at least one occasion when the father turned up at the Centre, his breath smelt of alcohol.  He denies that he has any drinking problem, but the evidence would tend to suggest to the contrary.

10. As to emotional harm, again this has some relationship to the father’s paranoia and other personality issues.  However although his interactions with his children are awkward and stilted, there does not seem to be any suggestion that the content of the conversation is inappropriate.

11. The evidence does suggest that B perceives that the father favours C over him (and indeed that is C’s perception too) but more recently the father has been telling Mr P that B needs to be mentored by him as part of the process of becoming a man.

12. There may also be some risk that the father will seek to again use any time with the children to re-establish contact with the mother.  In the first Family Report of October 2011 – notwithstanding the fact that the parties had separated in July 2010 – the father told Mr P that he and the mother “could work this out.  And we need to get married, and not live like animals.”

1. Then in the course of the second Family Report interviews in 2013, he told Mr P in relation to the mother that “she will be the only person I will ever be with in this life.”

2. Then in 2014 in his interview with Mr P the father said in relation to whether he had re-partnered “but that is not for me to have a girlfriend; because I am from the Christian background; and only have sex when married.”  Of course the mother and father never formally married and were in a de-facto relationship for all of the time of their relationship.

3. At paragraph 87 of the second Family Report Mr P concluded “the father’s presentation continues to be enigmatic; and particularly in respect of balancing competing concerns regarding maintaining the children’s relationships with him, together with risks he may pose to their emotional, if not physical safety over time.”  In the most recent Family Report he concluded at [109] that the father’s time with the children should remain supervised for the next 12 months “to maintain accountability.”  His concerns in relation to emotional and physical harm to the children appear to have been ameliorated.

4. Of course if the father’s paranoia were to express itself as a delusional belief that his life was in imminent risk, or perhaps his family’s life was in imminent risk, the father might act precipitously.  However there is really nothing in the material which persuades that such presents as a real possibility, at least on the father’s current presentation.

5. Upon balance whilst there is some risk associated with the father, I am not persuaded that it is presently at an unacceptable level.   

IMPACT OF MOTHER HAVING TO DEAL WITH FATHER

1. Whether it be for cultural or personality reasons, I am satisfied that the father has not in the past, and would be unlikely to in the future, allow the mother to live an autonomous, independent life.  The relationship commenced when the mother was only 16 years of age and the father 26.  From its inception it has been characterised by the father’s control and domination of the mother.  On occasions, particularly in Africa, it was a highly violent one, and it has continued up until separation with the mother being generally disempowered, including having been regularly forced to engage in sexual activities which were not her wish.  Even after separation the father’s controlling and domineering behaviour has continued.  I do not believe that it is likely to change.  It appears to be deep and ingrained.  Even though in his evidence before me he expressed, in answer to a question from the Independent Children’s Lawyer’s counsel Ms Wilson, that he would not turn up to the mother’s house again unannounced, I very much doubt that he will keep that promise without an order to that effect.  Even then I have my doubts.

2. The mother has improved her ability to distance herself from the father’s dominance and control.  However the father’s complete disregard for the mother’s entitlement to have an independent life means that he continues to turn up unannounced at her home.  He remains jealous of her new relationship.  I am persuaded that when he turns up, ostensibly to spend time with the children, he is really doing so to engage with the mother.  I fear that he senses an entitlement in relation to the mother.

3. Mr L’s evidence was that the father’s interaction with the mother has affected her ability to parent, and is to a large extent ruining her life.  He said that she is still living in the fear and shadow of this highly controlling man.  I accept that evidence.  It was given in such an impassioned and genuine way that it was highly compelling.  Any contact with the father substantially unsettles the mother, and erodes her general ability to cope, and hence parent.

BENEFITS OF RELOCATION

1. The mother’s evidence was that refugees are no longer being settled in the E Town region.  Further, she said that she has good contacts with relevant organisations who assist in settling refugees and has good skills in relation to a number of African languages.  She says that she could obtain employment in Queensland, particularly M Town, by virtue of her contacts and skills, but cannot obtain such employment in E Town.

2. Her unchallenged evidence was that paid employment would significantly change her and her children’s lives.  She would be able to buy things for them.  She may be able to obtain a better motor vehicle than the present one which she has, which has numerous problems and sounds as though it is probably un-roadworthy.

3. I do not think it an exaggeration to say that if the mother were able to obtain the employment that she seeks working with other refugees, it would transform both her life and the children’s lives for the better.

4. Further, if the mother were to relocate away from where the father was residing, there would be a practical impediment to the father doing that which has repeatedly done since separation, namely turning up at the mother’s home unannounced.  That would be a substantial benefit for the mother, and in turn, the children.

SECTION 60CC CONSIDERATIONS

Section 60CC(1)(a): The benefit to the child of having a meaningful relationship with both of the child's parents

1. No one contends that the children do not experience real benefit from, and enjoy, a meaningful relationship with their mother.  I have already discussed the nature of the father’s relationship with the children which is best described as ambivalent.  That said, the children will obtain benefit from a continuing relationship with the father, so long as the adverse effects of their enjoyment of that do not outweigh the benefits.  Particularly by that I mean if it can be enjoyed in a way which does not erode the mother’s parenting capacity and which does not expose the children to any negative aspects of the father’s behaviour.

Section 60CC(1)(b): The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. The children should be protected from being exposed to the ongoing conflict between their parents.  I do not suggest that this necessarily amounts to family violence, although the controlling behaviour of the father may well meet that definition in the Act.

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

1. The children’s views have been most recently formally expressed in November 2014 to Mr P, however since then B has live for some weeks with his father.  He appears now to be content to maintain some relationship with his father but not live with him.  Given B’s age, I give his views weight.  I do not give the views of C as much weight but I do give them some.  She appears to have real ambivalence as to spending time with her father given her poor experience of it historically.

2. I do not give the youngest child’s views any weight.

Section60CC(3)(b): The nature of the relationship of the child with:

(i)       each of the child's parents; and

(ii)      other persons (including any grandparent or other relative of the child)       

1. I have discussed the nature of the relationship the children have with their father and mother in the preceding paragraphs.  The only other person of significance is their maternal uncle Mr L.  Plainly these children (together with the mother) being, other than his own children, the only family that he has left in the world, are particularly precious to Mr L.  However that does not have much impact on the outcome of this case save that Mr L may be an appropriate supervisor for any time the children may spend with the father.

Section 60CC(3)(c): The extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)      to spend time with the child; and

(iii)     to communicate with the child

1. No criticism can be made of the mother under this heading.  On the other hand the father does not appear to have been actively involved in decision making in relation to the children, and has not taken every opportunity to spend time or communicate with the children.  In part this I suspect is because he uses them as a means of getting to the mother, rather than experiencing a relationship with the children.

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

1. The mother has been wholly responsible for maintaining the children since separation.  The father has engineered his circumstances so as to avoid paying child support.  He has instead provided the children with money directly whist at the Contact Centre, which cannot be seen as any attempt to in fact maintain them.  His provision of funds has been in the nature of discretionary pocket money for the children.

Section 60CC(3)(d): The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)       either of his or her parents; or

(ii)      any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. I have specifically addressed this consideration in considering the major issues in this case.

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

1. So long as both parents continue to live in E Town there will be no practical difficulty in the father spending time with the children or communicating with them.  That difficulty will only arise in the event that the mother or father relocates.  There is a substantial prospect that the father may unilaterally relocate, and certainly he does not appear to have any strong commitment to staying in the same city as the children.

2. If the parents live some distance apart, then plainly there will be practical difficulty and expense in the father spending time with the children.  However as I have previously discussed in these reasons, I am not of the view that that will substantially diminish the benefit which the children obtain from their relationship with the father.

Section 60CC(3)(f): The capacity of:

(i)       each of the child's parents; and  

(ii)      any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs

1. Although the mother has had some difficulty in parenting the elder two children, it cannot really be said of her that she does not present as an adequate provider of the children’s needs.

2. The same cannot be said for the father.  He does not appear to appreciate the impact of his ad hoc and generally argumentative interactions with the mother in front of the children, nor does he appear to appreciate that even the formal supervised time he spends with the children is not experienced by them in a way that is positive.

3. In part this may be the product of the father’s culture, or it may also be the product of the horrendous background which he brings with him to Australia from the Country F genocide.  Either way, I do not assess the father as having a good capacity to provide for the needs of the children, particularly as regards their emotional needs.

4. He may have some capacity to provide for their intellectual needs, and clearly he is an intelligent man.  However the way in which he seeks to engage intellectually with the children is not experienced in a satisfactory way by them.

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

1. All of the parties and children are ethnically African.  That is important, but there is no suggestion that they will not continue to enjoy that culture on any party’s orders.

Section 60CC(3)(h): If the child is an Aboriginal child or a Torres Strait Islander child:

(i)       the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)      the likely impact any proposed parenting order under this Part will have on that right

1. This is not engaged.

Section 60CC(3)(i): The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

1. I have sufficiently discussed this consideration in the preceding paragraphs.

Section 60CC(3)(j) Any family violence involving the child or a member of the child’s family

1. I have discussed this in the general factual history.  Family violence is not the determining factor in this case, although the need to shield the children from ongoing conflict between the parents is a live issue.

Section 60CC(3)(k): If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)       the nature of the order;

(ii)      the circumstances in which the order was made;

(iii)     any evidence admitted in proceedings for the order;

(iv)      any findings made by the court in, or in proceedings for, the order;

(v)       any other relevant matter

1. Family violence orders have applied from time to time however they do not appear to have been enforced, or conformed with by the father.  The only inference which I draw from those orders is that in the past the father has been argumentative, controlling and dominating.  The fact that there has been a family violence order does not add anything to the substantial body of evidence which supports that conclusion.

Section 60CC(3)(l): Whether it be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. I have given some thought as to whether or not any application for relocation on the part of the mother should be brought if and when she imminently wishes to relocate.  However I am satisfied that it is appropriate to deal with the relocation application now, as not to do so is likely to lead to the institution of further proceedings in relation to the children.

Section 60CC(3)(m) Any other fact or circumstance that the Court thinks relevant

1. There is no other fact or circumstance I can identify which is relevant.

PARENTAL RESPONSIBILITY

1. Plainly the presumption of equal shared parental responsibility established by s 61DA does not apply in this case, as there is a reasonable basis to believe that there has been family violence.  Even if the presumption did apply, I would be satisfied that it is not in the best interests of the children for there to be equal shared parental responsibility, because of the considerable history of conflict and argument between the parties.  No one could seriously argue that the parties would be able to meet their obligations to negotiate in good faith towards resolving issues in discharge of joint parental responsibility.

2. In those circumstances the only appropriate order can be one that reflects the children’s living arrangements, in that the residence parent should be given the parental responsibility in relation to long term decision making.  Anything else would be completely unworkable.  All parties want the children to live with the mother.  She must have sole parental responsibility and I am satisfied that such an order is in their best interests.

WITH WHOM SHOULD THE CHILDREN LIVE

1. The father does not seek an order that the children live with him.  I am satisfied that it is in the children’s best interests that they live with the mother. 

THE CHILDREN’S TIME AND COMMUNICATION WITH THEIR FATHER

1. The mother proposes that the father spend no time with the children, but that he may communicate with them.  However I am not satisfied that the father is an unacceptable risk of harm to the children, such as to preclude him spending time with them at all.  Moreover although I accept that having anything to do with the father impacts adversely on the mother’s parenting, it is not at a level that the father should be restricted to only communicating with the children. 

2. The question then is what time the children should spend with the father.  The father suggests some hours in church on a Sunday.  The Independent Children's Lawyer seeks supervised time with the children at a Contact Centre each fortnight or, if the mother moves away from E Town, a mix of telephone or Skype contact during school terms, with face to face time at a supervised venue during school holidays.

3. I am not satisfied that it is in the best interests the children to only experience their father at church.  In part I am concerned that the father’s primary motivation is simply to have the children attend church, although not necessarily to spend time with him.  In any event, I am not satisfied that the church time would really facilitate a meaningful relationship between the children and the father.  I am therefore persuaded that the orders sought by the father are not in the best interests of the children. 

4. However I am broadly satisfied that the orders sought by the Independent Children's Lawyer are in the best interests of the children and particularly that they will allow the children an ongoing relationship with their father.

5. This then leads to a consideration of whether the father’s time with the children requires permanent supervision.  Plainly as regards B there is no need for that.  B was able to live with his father without any real difficulty – save that he found him strict – in recent times.

6. Upon balance I accept Mr P’s evidence that supervision should continue for a further 12 months, but thereafter that requirement is not justified.

7. That then raises whether, after the requirement for supervision falls away, the father’s time should be restricted to two hours.  The two hour regime is no doubt related to the maximum block of time available at the E Town Contact Centre.  There is no logical reason to continue that restriction absent the need for supervision.

8. I will hear the parties further as to what time the children should spend with the father after the expiration of 12 months, assuming they are then still living in E Town.

9. However the difficulty which will in any event arise is how the parties can effect changeover of the children into the father’s care from time to time.  Plainly the parties should not be required to come into direct contact with each other, and therefore it seems the only realistic outcome is for changeovers to take place at a Contact Centre, but the father’s time with children otherwise to not require supervision.  

RESTRAINTS & PROTECTIONS

1. I am satisfied that there needs to be an order restraining the father from spending any time with the children, or from having communication with them, other than provided for in these orders.  He has a long history of complete disregard of any formal constraint in seeking to spend time with the children (accepting that it is probably the case that he is using it as a pretext to interact with the mother) and plainly the mother needs to be free of the prospect of the father turning up at any time when he feels the need to see her.  Because he uses spending time with the children as the pretext for that, it is appropriate that the restraint be made.

2. Further, given the long and concerning history of controlling and violent behaviour of the father, I am satisfied that the personal protection orders sought by the Independent Children's Lawyer are also appropriate.

RELOCATION

1. The opportunities available to the mother in the event that she wishes to relocate would inevitably flow on to a far better life for these children.  Not only will she have physical distance between herself and the father, but she will have financial independence and a far better income than she presently enjoys.  There is no reason to think that the considerable progress she has made in the seven years since the parties first came to this country would not continue with the further opportunities which employment would give her.

1. True it is that the regularity of the time which the children spend with the father would be reduced, and the quality of it changed to being one of telephone or Skype, save for the prospect of some holiday contact.  However there is a live possibility that the father will simply move away from the E Town area anyway, which would achieve the same result.  He has said he is going to do so on several occasions now, although I accept he has not in fact ever done so.

2. Weighing the benefits to the children from relocation against the disadvantages, in my view they tell strongly in favour of the mother being permitted to relocate.

3. There will therefore be an order permitting the mother to relocate and I am satisfied that, with one exception, the only workable regime of orders in that event is, in substance, that proposed by the Independent Children's Lawyer.

4. The exception is as to what time the father might spend with the children after the 12 months requirement of supervision ceases.  The Independent Children's Lawyer’s orders – which contemplated ongoing supervision – would see that indefinitely restricted to two hours for each of the school holiday blocks in each year.  Given that I am not satisfied that his time would need to be supervised after 12 months, the two hour restriction – which is based on likely Contact Centre available time – would be simply arbitrary, and not necessarily sufficient to encourage the father to go to the expense and inconvenience of what might be travel of some considerable distance.  Moreover it would severely restrict what activities the father could undertake with the children.

5. Whilst I shall hear the parties further, my inclination is to give the father liberty to apply in relation to the time he spends with the children, should they have, or be, relocated from E Town once the 12 month supervision period expires.  I say that because of the number of variables that might then come into play. 

CONCLUSION

1. For the foregoing reasons there will be orders substantially as sought by the Independent Children's Lawyer save that supervision of the father’s time will only be required for a further 12 months.  I will hear the parties further as to the father’s time with the children after 23 April 2016.  Otherwise all applications will be dismissed.

I certify that the preceding one hundred and forty nine (149) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 23 April 2015.

Associate:

Date:  23 April 2015