Ori and Okonkwo

[2008] FamCA 434

FAMILY COURT OF AUSTRALIA

ORI & OKONKWO [2008] FamCA 434

FAMILY LAW – CHILDREN – With whom a child spends time

APPLICANT:  Ms Ori

RESPONDENT:  Mr Okonkwo

FILE NUMBER: PAF 25 of 2005

DATE DELIVERED: 20 March 2008

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: STEVENSON J

HEARING DATE: 27 February 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jackson

SOLICITOR FOR THE APPLICANT: Lamrocks Solicitors & Attorneys

FOR THE RESPONDENT: In person

Orders

1. That all existing orders in relation to the children S, born … June 2002, and D, born … May 2005 (“the children”) be discharged.

2. That the children live with the mother.

3. That the children spend time with the father as follows:

   3.1from 12:00 noon until 3:00pm each Saturday for a period of 4 months, commencing on 22 March 2008

   3.2thereafter from 12:00 noon until 5:00pm each Saturday

   3.3for a period of 3 hours on each of the children’s birthdays, at times to be agreed or to be from 12:00noon until 3:00pm in default of agreement

   3.4for a period of 3 hours on the father’s birthday in each year, at times to be agreed or to be from 12:00noon until 3:00pm in default of agreement

   3.5from 12:00noon until 5:00pm on Fathers Day in each year

   3.6at such other times as the parties may agree in writing

4. That the father shall give the mother no less than 24 hours notice, in the event that he is unable to spend time with the children in accordance with these orders.

5. That each of the parties is restrained from removing the children from the Commonwealth of Australia.

6. That each of the parties do all things necessary to ensure that the names of the children remain on the Watch List.

7. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

8. That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 25  of 2005

MS ORI

Applicant

And

MR OKONKWO

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. Ms Ori and Mr Okonkwo are the parents of two children:

   S born in June 2002             (5) and

   D born in May 2005 (2)

   These proceedings concern the amount of time and conditions under which the children should spend time with their father.

2. On 6 February 2006 interim orders were made by consent, to the effect that S spend time with her father each Saturday from 12:00noon until 3:00pm.  These orders also provided that D spend time with his father for two hours each Saturday.  All of the children’s time with their father is supervised by the mother’s sister, Ms M.

3. The mother now seeks that these orders become final and that the requirement for supervision continue until S turns 11 years old, in June 2013.  The father seeks unsupervised time with the children each Saturday from 12:00noon until 6:00pm and on special occasions.

BACKGROUND

1. The father was born in January 1974 in Africa.  He came to Australia via South Africa, where he obtained a passport, and arrived in this country on 4 February 2000.  Four days later he met the mother through a mutual acquaintance and they soon commenced a relationship.

2. The mother was born in February 1971, into a fairly traditional Christian family.  She and the father kept their relationship a secret and did not reveal to her parents that they had married in February 2001.  Following the marriage the parties lived in separate accommodation. 

3. When the mother became pregnant with the parties’ first child, S, the parties went through a religious marriage ceremony in the Christian Church attended by the maternal family.  This ceremony took place in November 2001, from which time the parties lived together in the home of the mother’s parents. 

4. The father’s visa expired in 2002 and he was then obliged to leave Australia.  He went into hiding and managed to delay his departure until S’s birth in June 2002.  He travelled to Africa on 25 November 2002 and remained in that country until 31 August 2004.  He then returned to Australia and lived with the mother in the home of her parents, until the marriage ended on 29 December 2004.  On that date the father left the home in the early hours of the morning, without any prior notice to the mother.

5. On 9 May 2005 interim orders were made by consent, to the effect that S spend time with her father each Saturday from 12:00noon until 3:00pm and each alternate Sunday from 2:00pm until 5:00pm, under the supervision of the mother’s sister.  On 6 February 2006 further interim orders were made by consent, which included provision for D to spend two hours each Saturday with his father, under the supervision of the mother’s sister.  Both sets of interim orders provided that the names of the children be placed on the Watch List.

6. The father has not spent time with the children on a regular basis since February 2006.  For present purposes, it is sufficient to observe that he largely blamed the unavailability of the supervisor for missed periods of time with the children.  He did concede that, on at least one occasion, he refused to see the children because the mother’s family denied his request to bring them to his home.  The mother alleged that the father was unavailable to spend time with the children on several occasions due to other commitments, to which he gave priority. 

7. The father was in Africa for two and a half months in 2007, following the death of his father.  Obviously, he could not spend time with the children during that period.

8. It seems that the father has succeeded in obtaining permanent residency in Australia.  He married an African lady while in that country in 2007 and hopes to bring his wife to Australia in due course.

APPROACH TO THESE PROCEEDINGS

1. The legislative provisions which govern parenting issues are contained primarily in Part VII of the Family Law Act. The objects of this Part are set out in section 60B(1) and, in summary, provide that children’s best interests are met by:

   ·    ensuring that children have the benefit of a meaningful involvement of both parents in their lives to the maximum extent, consistently with their best interests

   ·    protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

   ·    ensuring that children receive adequate and proper parenting to help them achieve their full potential

   ·    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 set out in section 60B(2) and include the following:

   ·    children have a right to know and be cared for by each of their parents

   ·    children have a right to spend time on a regular basis and communicate with both parents and other people significant to their care, welfare and development, for example, grandparents and other relatives

   ·    parents should jointly share duties and responsibilities concerning the care, welfare and development of their children. 

   These principles are expressed to be subject to the best interests of children.

3. In deciding whether to make a particular parenting order the court must regard the child’s best interests as the paramount consideration:  section 60CA.  In determining what is in a child’s best interests, the court must have regard to the primary and additional considerations set out in section 60CC.

4. Section 61DA(1) obliges the court to apply a presumption of equal shared parental responsibility, when making a parenting order.  This 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 child abuse or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility:  section 61DA(4).

5. The presumption created by section 61DA relates to parental responsibility and not to the amount of time which a child spends with each parent.  If there is an order for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for the child to spend equal time with each parent: section 65DAA(1).  If there is an order for equal shared parental responsibility but the child is not to spend equal time with each parent, the court must consider whether it is in the best interests of the child, and reasonably practicable, for the child to spend substantial and significant time with each parent:  section 65DAA(2).

THE PRIMARY CONSIDERATIONS

Section 60CC(2)(a):          the benefit to the child of having a meaningful relationship with both of the child’s parents; 

1. The mother did not oppose the children’s spending time with their father, although of limited duration and under long term supervision.  Implicitly, therefore, she must be of the view that the children will benefit from some kind of a relationship with him.  It is doubtful that her proposal for all of the children’s time with their father must be supervised for the next 5 years will allow for the development of a “meaningful” relationship between them.

2. The Family Consultant, Dr H, recommended that the children spend limited, unsupervised time with their father.  The necessary implication is that he perceived a benefit to the children in having an ongoing relationship with their father.  Dr H drew attention to the artificiality of a situation in which all of the children’s time with their father is supervised.

3. S and D are children whose parents come from very different cultural backgrounds.  The father is an African man with strong cultural and religious beliefs.  The mother comes from a traditional Christian family .

4. It appears to me that it may not be a simple matter for S and D to move freely between the very different cultures of their parents as they grow older.  In my view, an ongoing meaningful relationship with each parent is very likely to assist them in this regard.

   Section 60CC2(b):  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

5. There is no suggestion that the children are at any risk of abuse, neglect or violence in the care of their mother.  The mother harbours several concerns as to the father’s capacity to care for the children, which I will consider below.  I would not regard these concerns as to amounting to allegations of abuse or neglect.  There was no allegation that the children are at risk of being subjected or exposed to violence while in the care of their father.

THE ADDITIONAL CONSIDERATIONS

Section 60CC3(a):  any views expressed by the child and any factors (such as the child’s maturity or level of understand) that the court thinks are relevant to the weight it should give to the child’s views;

1. D is only 2 years and 9 months old, so he is obviously too young to express any views as to the amount of time which he should spend with his father.  S is now approximately 5½ years old and her age means that significant weight should not be attached to her stated views.

2. In July 2006, when S was 4 years old, she told the Family Consultant that she “did not like” her father and that she was afraid of him.  Dr H’s assessment of S’s statement was as follows:  “[S’s] claim to be afraid of her father is of some concern, as she displayed more aggression than fear when alone in his company.  A possible explanation for saying that she is afraid of him is that she has picked up on her mother’s very palpable fears of [the father]”.

3. Dr H saw the family for a second time in December 2007, when S was 5½ years old.  He reported:  “[S] was able to describe her father’s home in some detail, seemingly from the infrequent occasions that he had taken her there.  She claimed not always to be very happy about spending time with [the father] and not to miss him.  She then related that her mother had instructed her father to take both her and [D] to spend money on them.  [S] added: ‘He doesn’t spend money on us’”. 

4. In Dr H’s opinion, “[S] is of an age where she is keenly aware of her mother’s [and possibly her maternal extended family’s] fears of her father and their accompanying attitude towards him.  [D], still too young to comprehend the family dynamics, brings a less complicated agenda to his interaction with [the father].  The lad seems to enjoy the involvement of his father to whom he displays no obvious apprehension.”

5. It would thus seem that S has been influenced by her mother and extended maternal family to express the view that she is not enthusiastic about spending time with her father.  In fact, however, she voiced no real opposition to being in his care.  For these reasons, I do not attach significant weight to the expressed views of S.

   Section 60CC3(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);

6. The children have not had a lot of contact with their father since the separation of their parents and D has never lived with him.  Not surprisingly, therefore, Dr H reported in January 2008 that “[S] and [D] are now more familiar with their father, although their relationship still appears somewhat superficial”. 

7. Obviously the children have a very close relationship with their mother, who has been their primary carer throughout their lives.  This closeness brings a risk, however, which was identified by Dr H in these terms:

   “[the mother] remains anxious.  Her anxiety seems to have generalised to such an extent that she will seize on whatever [the father] does as a basis for believing him untrustworthy.  The extent to which her anxiety is fuelled by her own family is unknown.  The risk is that her children will become prisoners of her anxiety at least in regard to the scope for them to have their father involved in their lives.”

   Section 60CC3(c):  the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

8. To the mother’s credit, she has not stood in the way of the children’s spending time with their father although she harbours fears as to his trustworthiness and ability to care properly for them.  To that extent she must be seen as willing and able to facilitate the children’s relationship with their father.  Whether she really wishes that they have a “close” relationship with him is a somewhat more problematic issue.  I am doubtful that the mother sees a significant role for their father in the children’s lives.

   Section 60CC3(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;

9. The father sought to remove the requirement of supervision of the children’s time with him.  The mother strongly opposed any unmonitored time and emphasised the fears which she holds. 

10. The change proposed by the father would not involve any separation of the children from their mother.  The most significant effect of the removal of supervision is likely to be an enhancement of her fears as to his trustworthiness and ability to care for them.  It may well be that some adverse effect will flow on to the children, if the anxiety of their mother is increased.

11. In his most recent report Dr H referred specifically to the mother’s “generalised” anxiety regarding the father.  Nonetheless, he recommended relatively short periods of unsupervised time for the children with their father. 

12. There was no expert evidence adduced in the case for the mother, to the effect that she could not cope with unsupervised contact between the children and their father.  For that reason, and in light of Dr H’s recommendation, I am not satisfied that the change proposed by the father is likely to be contrary to the children’s best interests on this basis. 

    Section 60CC3(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;

13. No issues arise pursuant to this subsection.

    Section 60CC3(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;

14. This subsection raises directly the question of the validity of the mother’s fears as to the father’s untrustworthiness and inability to provide proper care for the children, if their time with him is unsupervised.  In my view some of her fears may have justification and others lack a valid basis.

15. The mother claimed that she is afraid that the father will take the children out of Australia.  She referred to the fact that he has held passports in three different names and that he has allegedly spoken about the ease of obtaining false travel documents. 

16. The father denied that he has any intention of leaving Australia with the children. Convincingly, he readily agreed to an ongoing order that the children’s names remain on the Watch List.  Further, he emphasised his strenuous efforts to gain permanent residency in this country and queried why he would now sacrifice his hard-won status.  As well, he pointed out that both of his parents are deceased and that he has no immediate family in Africa.  Another relevant consideration is his desire to bring his African wife to Australia at the earliest possible opportunity.  For these reasons I am far from persuaded that there is any real risk that the father will remove the children from Australia.

17. The mother also said that she fears that the father will have D circumcised, contrary to her wishes.  It seems to be true that he once had a firm wish that D undergo this procedure, for reasons relating to his African heritage and religious beliefs.  It also seems that he has now changed his mind and recognises the pain which the procedure would inflict on the little boy.  I agree with Dr H’s assessment that the risk that the father would have D circumcised is now “even slighter with the passing of time since the first Family Report”. 

18. The mother is fearful that the father’s sleep apnoea would pose a risk to the children, if they are left unsupervised in his care.  In evidence was a report dated 26 June 2006 from Dr N, a consultant thoracic physician.  Dr N reported that he had conducted a diagnostic sleep study of the father in October 2004, which “revealed the presence of severe obstructive sleep apnoea”.  Dr N reviewed the father in October 2005, when he reported a considerable improvement after commencing to use a machine to control his condition.  Eight months later, Dr N again reviewed the father, who reported that his symptoms “had subsided considerably”. 

19. The fathergave uncorroborated evidence that his sleep apnoea condition is currently well-controlled.  Although he adduced no expert evidence  as to his medical condition, I am inclined to accept his statement that he no longer suffers from this difficulty.  In general terms, he seemed to me to be a frank and honest witness.

1. The mother also holds concerns that the father lacks the capacity to provide proper care for the children, if unsupervised, due to his inexperience as a parent.  It is true that he has spent little time with them and has not yet cared for them alone.

2. On the other hand, the father seeks only limited time with the children.  He made no proposal for overnight or block holiday periods of time.  For a number of reasons, any such application would have been problematic for him. 

3. Although recognising the father’s lack of experience as a parent, Dr H recommended a three month period of three hours per fortnight, then extending to five hours.  Dr H must not have shared the mother’s concern that the father’s lack of parenting experience puts the children at risk, at least for these short periods.

4. In a general sense the mother has concerns as to the father’s character and, presumably, his suitability as a role model for the children.  The fact is, however, that he is their father and they are entitled to know and experience the reality of him.  It may well be that the mother’s disappointment and hurt at the breakdown of the relationship has led her to mistrust the father and to have formed such a poor opinion of him. 

5. Overall, I have reservations as to the father’s capacity to care for the children, primarily arising from his lack of experience as a parent.  Like Dr H, however, I am of the view that other considerations are more significant in assessing what arrangements are in the children’s best interests.

   Section 60CC3(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;

6. I have referred already to the markedly different cultural backgrounds of each of the parents and the difficulties which the children are thus likely to encounter as they grow up.

   Section 60CC3(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;

7. No issues arise pursuant to this subsection. 

   Section 60CC3(i):  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

8. The father demonstrated an appropriate attitude to the responsibilities of parenthood when he followed Dr H’s recommendation that he undertake a parenting course.  He was criticised for his failure to tender in evidence a certificate of completion of this course and I was urged to find that he did not, in fact, undertake the program.  I reject this submission and, as stated earlier, I found the father to be a frank and honest witness.  I note that he offered to provide the certificate to the court on the day following the hearing. 

9. The father’s willingness to forego time with the children, due to the maternal family’s alleged refusal to bring them to his home, does not reflect well on his attitude to the responsibilities of parenthood.  Clearly, he needs to appreciate the importance of his seeing the children on a regular basis, regardless of his own convenience.

   Section 60CC3(j):  any family violence involving the child or a member of the child’s family;

10. No issues arise pursuant to this subsection.

    Section 60CC3(k):  any family violence order that applies to the child or a member of the child’s family, if:

    (i)the order is a final order;  or

    (ii)the making of the order was contested by a person;

11. No issues arise pursuant to his subsection.

    Section 60CC3(l):  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

12. In my view, an order for the children to spend unsupervised time with their father is least likely to lead to the institution of further proceedings.  The father would not be content with an order requiring supervision for the next five years, for good reason in my opinion.  Such an arrangement would be artificial for himself and the children and would not facilitate the development of a relationship between them.  In addition, ongoing supervision would send an inappropriate message to the children about the trustworthiness of their father.  In my opinion the children are entitled to a proper opportunity to develop a loving, trusting relationship with him. 

13. On the other hand, it might be said that the removal of supervision would increase the mother’s fears to such an extent that she might instigate further litigation.  The fact is, however, that supervision must cease at some stage and the mother will have to come to terms with that reality.

CONCLUSION

The Presumption of Equal Shared Parent Responsibility

1. It was not submitted that this presumption does not apply or has been rebutted.  The children will continue to spend time with their father and I can see no reason why equal shared parental responsibility should be discontinued. 

2. It is thus necessary that I consider whether the children should spend equal time or “substantial and significant time” with each parent.  The father’s proposal was not for equal time, nor “substantial and significant” time.  In all of the circumstances, it would be unviable for the children to spend such time with their father.

3. The real question is whether supervision should continue or whether unmonitored time should now be introduced.  It seems to me that a point has been reached when the children should be given an opportunity for a less artificial interaction with their father.  In the circumstances I would not consider any overnight time, which was not sought by the father in any event.

4. I propose to limit the children’s unsupervised time with their father to 3 hours per week for a period of four months.  Thereafter, the time will extend to 5 hours per week.  I am of the view that their safety will not be compromised within these time frames.

I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              March 2008