NNKB & JN - [2005] FMCAfam 380

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NNKB & JN

[2005] FMCAfam 380

FAMILY LAW – Parenting – interim contact – allegations made by mother of child being the result of sexual assault – mother seeks no contact order – 19 month old child.

Family Law Act 1975

B and B (1993) FLC 92-357
Grant and Grant (1994) FLC 92-506
Sedgley and Sedgley (1995) FLC 92-623

Applicant:

NNKB

Respondent:

File No:

PAM 5855 of 2004

Delivered on:

27 July 2005

Delivered at:

Parramatta

Hearing date:

12 July 2005

Judgment of:

Sexton FM

REPRESENTATION

Solicitors for the Applicant:

Legal Aid Commission of NSW

Counsel for the Applicant:

Mr D Dura

Solicitors for the Respondent:

James Papas Solicitors

Counsel for the Respondent:

Mr D Maddox

Solicitors for the Child Representative:

Coleman & Greig

Counsel for the Child Representative:

Ms D Harris

PENDING FURTHER ORDER:

The child MT, born 8 December 2003, reside with the mother.
The mother have sole responsibility for the day to day care, welfare and development of the child.
The child have no contact with the father.
The mother contact Relationships Australia on 1300 364 277 by no later than 4.00p.m. on Tuesday 2 August 2005 to make arrangements to attend a minimum of six (6) individual counselling sessions to assist her to manage her anxiety and distress.
The mother to meet the costs of counselling.

FURTHER ORDERS:

That the proceedings be transferred to the Family Court of Australia in the Parramatta Registry.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 5855 of 2004

NNKB

Applicant

And

Respondent

REASONS FOR JUDGMENT

Applications

These are proceedings for interim parenting orders in relation to the child MT, born 8 December 2003, now aged nineteen months [“MT”].
The proceedings were commenced by the father in the Penrith Local Court by application filed 5 October 2004. By order of 4 November 2004 the proceedings were transferred to the Family Court in this Registry. The father filed amended applications on 21 February 2005 and 15 June 2005 seeking contact with MT on a graduated basis. The mother filed a response on 17 December 2004 seeking orders that MT reside with her and have no contact with the father.
The matter was set down for final hearing on 12 July 2005 for two days. Prior to the commencement of the hearing all counsel agreed that given the significant change in the anticipated length of hearing following the release of the expert report, the matter should be transferred to the Family Court. The matter has now been listed for final hearing in the Family Court for five days on 30 January 2006.
Pending final hearing, the father sought orders for contact, different to those sought in his latest amended application. He asked the court to order supervised contact for two hours each week. The mother opposed the father’s application, seeking an order for no contact. The child representative supported the father’s position.

Background facts

The father was born on 3 September 1956. He is 48 years old. He migrated from Egypt in 1992.
The mother was born on 12 August 1976. She is 28 years old. She obtained a degree in accounting and business management in Egypt before migrating in 1999.
The parties have never cohabited.
The parties have one child, MT, born 8 December 2003, aged nineteen months. The father deposed to the child being conceived as a result of an affair between the parties and the mother deposed to the child being conceived as a result of rape.
The mother married ST in Egypt in 1995. They have three sons, AT born 16 June 1997 aged 8, KT born 30 December 1999 aged 5 and GT born 8 January 2005 aged 6 months. The mother is not in paid employment. MT has lived with the mother since he was born and has not seen his father since September 2004.
The mother and her husband separated in April 2004 but saw each other regularly during separation and reconciled on 7 January 2005.
The father is married to MB. They have two children, BB aged 12 and NB aged 10. They separated in July 2003 but see each other frequently. The father is supported by the disability support pension.
An interim Apprehended Violence Order was made for the protection of the mother against the father on 22 October 2004. The father has recently been charged with a breach of that order. The father has denied the breach and I understand the matter is yet to be heard. Final apprehended violence orders were made for two years on 2 March 2005 in the absence of the father, but those orders were revoked on

27 June 2005. The mother’s husband obtained an apprehended violence order against the father on 26 April 2005 for the protection of himself, the mother and her four children.
There are no current parenting orders.

Issue

The issue for determination by the court was whether MT should have any contact with the father pending final hearing of the matter and if so, the nature and extent of that contact.

The relevant law – parenting

Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to section 65E which provides that a court must regard the best interests of the child as the paramount consideration. That is the overriding consideration. The four principles are:
a)Children have a 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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)Parents share duties and responsibilities governing the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children.
In deciding what is in the child’s best interests, the court must consider the matters set out in subsection (2) of section 68F. I have reviewed the evidence in light of the matters set out in that subsection later in these reasons.

Evidence

The father relied on his affidavit sworn 14 June 2005, filed 15 June 2005. The mother relied on her affidavit sworn 5 June 2005, filed 5 July 2005.
An expert report dated 10 July 2005 prepared by Dr Josey Anderson and Dr Kristof Mikes-Liu [“the experts”] was in evidence.
Counsel for both parties and for the child representative made submissions. Neither party was cross-examined.
The parties and the child representative tendered documents by consent which became exhibits in the proceedings.
I am satisfied on the basis of the mother’s evidence, the expert report and the documents tendered from the NSW Police Service that there have been difficulties in the mother’s relationship with her husband. The mother and her husband separated in April 2004 and reconciled on 7 January 2005, the day before the birth of their third son, GT. On 16 March 2004 the mother reported the husband to police for assaulting her. Although the mother did not pursue the matter, the police served the husband with a telephone interim apprehended violence order. The mother contacted police again on 1 December 2004 about her husband’s abusive behaviour. The expert report referred to the considerable stressors in the mother’s household.
From the affidavit evidence of both parties and the histories recorded in the expert report, I find there is presently a high degree of acrimony between the household of the mother and her husband and the household of the father and his wife. It was common ground that from about 2001/2002 the two couples had been good friends. The father in particular, spent a lot of time with the mother and her husband. The father and his wife were listed as emergency/collection contacts for the child KT at Mt Druitt Church of Christ child care centre [Ex 3]. The friendship has since collapsed. The mother’s husband now has an apprehended violence order against the father for the protection of himself, the mother, their three children and MT and the mother’s husband has made complaints to police about the father [Ex 5].
The father and the mother gave totally different versions as to the nature of their relationship from 2002.
The father deposed to a sexual relationship with the mother from September 2002. He deposed to a practice of collecting the mother on Mondays, Wednesdays and Fridays (KT’s pre-school days) and taking her to the CMI where they engaged in sexual intercourse. Records from CMI between 23 September 2002 and April 2003 [Ex 4] show 15 entries under the name “NNKB” and one under the name “JN”. According to the schedule of entries [part of Ex 4] all but one entry was a Monday, Wednesday or Friday. The father deposed to other intimate meetings with the mother on Tuesdays and Thursdays at her home and to attending local clubs with the mother during 2003. He deposed to moving to Mt Druitt in August/September 2003 and to continuing his intimate relationship with the mother at his home on the same 3 days a week. The father deposed to a confrontation with the mother’s husband towards the end of 2003 when the husband saw the parties in a car together. The police were called. However, according to the father, his relationship with the mother continued as before. The father deposed to visiting the mother in hospital the day after MT was born, to taking her flowers and gifts and to holding his son. He said their relationship ended on 24 April 2004. The father said he had slept with the mother on the night of 23 April and left her home at 5.30a.m. He said he noticed the mother’s husband following him to the train station. Shortly afterwards, the mother’s husband called the father on his mobile to say he had killed the mother and MT. The father called the police. The father said he subsequently had no face to face contact with the mother or MT until 19 August 2004 when they attended the Sonic Clinical Institute for parentage testing together. The next meeting was on the father’s birthday, 3 September 2004 when the mother visited the father’s home with MT and KT and again on 4 September when the mother visited with MT. The father deposed to the parties being intimate on both those occasions. The mother told the father she was again pregnant to him and he believed this to be so, though parentage testing has since excluded him as the biological father of the child GT born in January 2005. The father deposed to having no further meetings with the mother but to having many telephone conversations. The father said when he became aware of the allegations made by the mother against him the following conversation occurred:
Father: “why are you doing this?”
Mother: “because it’s a normal reaction, I have to defend myself.”
The mother, on the other hand, denied having an intimate relationship with the father. She deposed to the father arriving at her home in March 2003 when she was alone, smelling of alcohol and marijuana. She asked him to leave. He approached her, she screamed and he put his hand over her mouth. He pushed her onto the lounge room floor and raped her. She told no-one about the rape because of the likely community reaction. She said two weeks later the father came to her home one evening and went out with her husband. She said she went to bed at 7.30p.m. and awoke at about 8.00p.m to find the father in her bedroom and he raped her again. She deposed to other violent incidents which involved the father and necessitated police intervention. In or about April 2003 the father waved a knife at the mother’s husband and police were called. During her pregnancy with MT the father continually followed her in his car. Soon after the birth of MT the father assaulted the mother’s mother in their home. On or about 10 April 2004 the father verbally abused the mother’s husband and the mother’s brother in law and exposed himself outside the home the mother was visiting. On or about 12 April 2004 the father’s wife assaulted the mother in a shopping centre. The mother then separated from her husband and moved with the children to another location. On 24 April 2004 the father stayed in her shed overnight, was confronted by the husband in the early morning and police were called. In August 2004, after DNA testing had confirmed the father as the biological father of MT, the mother said she visited the father at his residence to talk about MT. The mother again visited the father in September 2004 and deposed to being raped again by the father in the presence of MT.
Counsel for the mother submitted that any form of contact posed an unacceptable risk to MT. He relied on the recommendation of the experts that MT should have no contact with his biological father at this stage of his development. As this was the experts’ recommendation on a final, not an interim basis, counsel submitted it could not be in the child’s best interests for contact to be started in any form pending final hearing. Counsel submitted that the arrangements for contact proposed by the father were vague and unsatisfactory. If accepted, the proposal would involve MT, at only 19 months, being handed over to a stranger, the supervisor, to spend time with a father with whom he had no relationship, in a playgroup setting he had never experienced. Counsel submitted that such contact was likely to be traumatic and given the mother’s anxiety and distress about the prospect of any contact, would not benefit MT.
Counsel for the father submitted that the court would be persuaded MT was conceived during an affair between the parties. He submitted that on the basis of the tendered material, the court would be highly sceptical of the mother’s allegation that MT was conceived as a result of a sexual assault. Counsel submitted that MT had a right to know his father and to develop a relationship with him. He submitted any further delay in commencing some kind of contact was detrimental to MT. He submitted that the father’s proposal for supervised weekly contact in a safe and child focussed environment posed no possible detriment to the child, only benefit, whatever the outcome of the final hearing. Counsel submitted the experts’ report was not helpful as the experts did not clearly set out the factual basis for their opinions, nor had they addressed the merits of the particular proposal put by the father for contact.
Counsel for the child representative submitted the case was finely balanced. At least one of the parties was not telling the whole truth. Counsel agreed with the father’s counsel’s submission that the tendered documents cast considerable doubt on the veracity of the mother’s complaint of rape and the genuineness of her claims about fearing the father. She argued that if the mother was not genuine, delay in starting contact was not in the child’s best interests. Counsel said the experts did not explain the basis of the mother’s alleged distress. She submitted that given her significant concerns about the mother’s credit, contact should commence on a supervised basis, in the terms submitted by counsel for the father.
I agree with counsel for the father and counsel for the child representative that the objective evidence is, at least in part, inconsistent with the mother’s version of events. There are a number of examples. According to the Optus records [Ex 2] in August 2004 there were 28 telephone calls from the mother’s home to the father’s telephone numbers. In September 2004 there were 10 calls. In October 2004 there were 11 calls. This was in a period when the mother was separated from her husband. It is difficult to reconcile this number of calls from the mother’s home with the mother’s assertion that she was and remains frightened of the father.
According to police records [Ex 5] the mother’s husband reported the father to police on 23 December 2003. The report records the mother’s husband telling the police he had marriage problems and that his wife [the mother] had been contacting the father “on a number of occasions for advice”. If the report is accurate, it is difficult to reconcile the mother’s claims of rape in 2003 with a report that she was seeking advice from the father about her marriage difficulties at the end of that year. On 22 October 2004 the mother complained to the police about the father harassing her. The complaint was part of Exhibit 1. The complaint referred to the mother having had “three intimate occasions” with the father which resulted in the birth of their son. There was no reference in the complaint to the mother having been raped by the father, yet on the mother’s evidence she had been raped only about a month before the complaint was laid. The mother deposed to the father threatening to seek orders for contact with MT because of her application for an apprehended violence order, but in fact, the father applied for contact orders before the mother laid a complaint with police. The father was an emergency/collection contact for the mother’s son KT and signed the register at the day care centre on 4 occasions [Ex 3] after his alleged rape of the mother in March 2003.
Neither party was cross-examined so the mother has had no opportunity to provide explanations for the apparent inconsistencies in her case. I can make no findings in relation to these disputed matters.
Counsel for the father asked the court to make orders as proposed by the father because there is evidence to suggest the mother’s allegations about her relationship with the father are false. Counsel discounted the opinion of the experts on the basis it was not clear on what facts they based their opinions. The experts made no findings as to each party’s allegations about the other, but nevertheless held the view MT should not have contact with the father. Their opinion was not stated to be conditional on the mother’s version of events being found to be accurate.

The relevant section 68F(2) factors

The nature of the relationship of the child with each parent and with other persons

There was no challenge by either party to the fact that MT has normal attachment for his age to his mother and brothers and to the mother’s husband. This was the finding of the experts and I accept it. At this stage, MT has not developed a relationship with the father who he has seen infrequently and not since September 2004. As reported by the experts [at page 10 of their report] it has not been possible for an attachment to have formed between MT and the father. I accept the experts’ opinion that MT does not have a relationship with either the father or with the father’s wife.

The likely effect of any change in the child’s circumstances

The mother’s counsel submitted that contact between MT and the father could expose MT to conflict between the parties and their families. At page 11 of their report the experts said:
The other effect of any change to current circumstances relates to the disruption that access visits with Mr NNKB is likely to cause in Ms JN and her family. We note the intensity of the anxiety that is generated when access options are discussed with Ms JN (and indeed, Mr ST). This is likely to result in chronic anxiety and distress in Ms JN and ultimately, in a compromise to her capacity to meet MT’s needs. Such an outcome is likely to be harmful to MT’s early development.
Counsel for the child representative submitted that the experts did not explain the basis of the mother’s distress. While it is true that the precise basis of the mother’s distress might not yet be fully delineated by the experts, it is clear from the above quotation and from other parts of the experts’ report that in their view, the prospect of contact between MT and the father is generating significant distress in the mother and her husband. No doubt their view will be explored in detail at final hearing when the experts will be cross-examined.

The practical difficulty and expense of a child having contact with a parent

The father proposes that he bear the costs involved in his proposal for supervised contact. This factor is not an issue in these proceedings.

The capacity of each parent to provide for the needs of the children, including emotional and intellectual needs

The mother has cared for MT since his birth and according to the experts has been able to adequately provide for his needs to this point. However, in the experts’ opinion [page 11 of their report] the mother’s capacity to provide for MT’s needs:
especially his emotional needs, is likely to be compromised in situations where she is under considerable and longstanding stress. Any other circumstance resulting in a marked deterioration in her mental state is also likely to produce a similar outcome. In a well supported environment, Ms JN is likely to be able to provide adequately for MT’s physical, emotional and intellectual needs.
The father has not cared for MT. He deposed to having had close involvement in the day to day care of his two older children, BB and NB now 12 and 10 years, since they were born. However, given the father’s proposal for supervised contact in a monitored playgroup setting, I am satisfied his untested capacity to care for MT is not a significant issue here.

The child’s maturity, sex and background

MT is 19 months old. Both parents and their families have Egyptian backgrounds. I have referred to the relevance of MT’s stage of development later in these reasons.

The need to protect the child from physical or psychological harm

This was a significant issue. The father recognised the risk of MT being exposed to physical or psychological harm and proposed he not come into contact with the mother or her husband during contact periods or during contact changeovers. There has been a high degree of tension between the parties at least since the father commenced these proceedings in October 2004 which at times has erupted into abusive behaviour involving the parties, the mother’s husband and the father’s wife. Both parties alleged ongoing conflict in the other’s household. The police have been involved on a number of occasions. The mother has previously obtained an apprehended violence order against the father. The mother’s husband currently has an apprehended violence order against the father.
The father conceded he has been convicted on two occasions of driving with mid-range PCA and is currently disqualified from driving. The mother alleged the father drank alcohol to excess and smoked marijuana, denied by the father. The father told the experts he had witnessed the mother’s husband kick KT at aged 3 years, as the husband believed he was not KT’s father. The experts raised the possibility of the husband mistreating MT for the same reason, yet found MT was attached to the father.
In the experts’ view, MT was at risk of psychological harm if the court ordered contact. The experts recorded both the mother and her husband being very concerned about the prospect of MT spending any time with the father. At page 11 they said:
The security of MT’s relationship with JN is affected by his mother’s capacity to regulate her own emotional state in order to interact effectively with MT and recognise his needs. The distress that JN is likely to experience when in contact with NNKB is also likely to render her unable to recognise and meet adequately the needs of her son. Further to this, MT will be acutely sensitive to any ongoing distress in his mother.
The experts gave this opinion: [page 12]:
MT currently appears to be in good mental and physical health ... he is at an important stage of physical and emotional development, where provision of a safe, predictable environment will optimise his development. In terms of contact, the capacity of his biological parents to provide him with a safe and predictable environment, both during and in between contact periods, depends to a large extent on their relationship with each other and their capacity to protect MT from any differences that arise between them ... this relationship is highly problematic, and in its current form, a move to establishing contact brings with it considerable risks to the stability of his environment.
Commencing a programme of contact at this stage is likely to result in a significant increase in the level of distress experienced by both Ms JN and her family … Should contact occur at this time, MT is likely to experience an environment that does not feel safe or predictable, and this is likely to impact adversely on his early development.
Although untested, this is strong evidence against contact being trialled at this stage.

The attitude of each parent to the responsibilities of parenthood

The mother has demonstrated her capacity to care for MT. The father has not had that opportunity. It is not possible to make findings as to each parent’s attitude to the responsibilities of parenthood without their evidence being tested in cross-examination.

Parenting arrangements

The mother opposes MT spending any time with his father. The father proposes that MT spend from 9.30a.m until 11.30a.m every Thursday morning with him at the Anglican Father’s Playgroup at Rooty Hill monitored by staff of the playgroup and supervised by a staff member from Rainbow – Home & Respite Services Pty Ltd, at a cost of $25.00 per hour. He annexed letters from the Co-ordinator of the Anglicare Playgroup and the Rainbow Home & Respite Services Pty Ltd to his affidavit confirming the availability of these services. The father proposes he meet the costs involved in his proposal.
The experts recommended against MT spending any time with the father at this time, whether the contact be supervised or unsupervised. Their recommendations were made in relation to final, not interim hearing. I find substance in the mother’s counsel’s argument that the court should be extremely cautious about ordering contact at this interim stage, given the experts’ view that MT should not have contact with his father at this stage of his development, as a final order. The experts said at page 14 of their report:
Any contact at this stage is likely to exacerbate the intensity of distress in JN and SN’s household, where MT’s primary relationships have been established. Such an outcome is likely to impact adversely on MT’s development.
In B and B (1993) FLC 92-357 the Full Court held that if there is present an unacceptable risk of a child being exposed to physical, emotional or psychological harm, then an order for supervised contact is not appropriate because of the court’s obligation to protect children from such harm. The Full Court said it is reasonable for the court to take into account the need of the custodial parent to be assured of the child’s protection. In Grant and Grant (1994) FLC 92-506 the Full court reiterated the position that if the court concludes that a contact order will have an effect on the capacity of the custodial parent to provide emotional and physical support to the child, the court must take this into account in deciding whether contact is for the benefit of the child. See also Sedgley and Sedgley (1995) FLC 92-623.
It was not the role of the experts to substantiate the veracity of the allegations of both parties in the assessment, and they acknowledged they were unable to do so. Despite their inability to make findings on the disputed issues, the experts made a clear recommendation based on a broad consideration of MT’s best interests that MT should not spend any time with his father at this stage of his development whether on a supervised or unsupervised basis. The father’s counsel submitted that the experts did not address the particular proposal put by the father at hearing and that is so. However, the experts did address the possibility of supervised contact and rejected it as against MT’s best interests. Counsel for the child representative submitted that if the mother’s allegations were false, MT should commence contact with the father now as delay would be detrimental to his welfare. I find no corroboration for her submission in the experts’ report.
There will be a final hearing in about 6 months. There has never been a contact regime in place. Balancing the rights of this child to have a meaningful relationship with his father pursuant to the objects of Part VII of the Act against the risks of trialling contact without the benefit of the parties or the experts being cross-examined, I am not satisfied it is in MT’s best interests for contact to commence.
The experts further stated it would be in the best interests of MTfor the mother to accept ongoing counselling or psychotherapy to assist her to manage her anxiety and distress. The mother agreed to this recommendation and I have ordered accordingly. I have noted the experts’ further recommendation that the mother and her husband also engage in relationship therapy and it would seem sensible for the mother and her husband to follow this recommendation.
I am satisfied in all the circumstances of this case, the orders I have made at the beginning of these reasons are in the best interests of MT pending final hearing.

I certify that the preceding fifty two (52) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Collette McFawn

Date: 27 July 2005