PRENTICE & DAFORA

[2016] FamCA 73

FAMILY COURT OF AUSTRALIA

PRENTICE & DAFORA [2016] FamCA 73

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – With whom a child communicates – Allegations of emotional, psychological and physical violence – Order that child live with mother – Order that mother have sole parental responsibility for the child – Order that father spend no time with the child – Injunctive Orders.

Family Law Act 1975 (Cth)

Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038

APPLICANT: Ms Prentice

RESPONDENT: Mr Dafora

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission

FILE NUMBER: WOC 292 of 2011

DATE DELIVERED: 19 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 11, 12 & 13 January 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Hurd McEwan Legal

COUNSEL FOR THE RESPONDENT: Mr Cairns

SOLICITOR FOR THE RESPONDENT: Williamson Isobella Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

Parenting Orders After Contested Hearing

1. Ms Prentice (“the mother”) shall have sole parental responsibility for A (“the child”) born … 2010.

2. The child shall live with the mother.

3. The child shall spend no time with and have no communication with Mr Dafora (“the father”).

4. Pursuant to s 68B of the Family Law Act1975 (Cth) (‘the Act’) the father is restrained from:-

   4.1living with, spending time with or communicating with the child;

   4.2directly or indirectly approaching and/or communicating with the mother and/or the child (including, but not limited to) in person, by telephone, email, SMS, facsimile and/or letter;

   4.3removing or taking possession of the child; and

   4.4contacting or approaching the mother and/or the child or entering upon any premises at which the mother and/or the child may be present.

5. The mother continue to engage with the Brighter Futures program (or similar) until such time that her Brighter Futures Case Worker (or similar) considers her engagement no longer necessary.

6. Pursuant to s 68C of the Act, if the father breaches the restraints contained in this these orders, the father may be arrested without warrant.

7. Pursuant to s 65DA(2) and s 62B of the Act, 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. Leave is granted to each of the parties to release copies of the following documents to their (or in the case of the mother – the child’s) treating general practitioners, psychologists, psychiatrists and/or similar heath care professionals:-

   (a)this order;

   (b)the reasons upon which this order is based;

   (c)the reports of Ms H dated 3 December 2015 and 8 January 2016; and

   (d)report of Ms O, Clinical Psychologist, dated 23 July 2012.

9. All subpoenaed documents be returned to the persons or institutions from which they emanated and all Exhibits to remain on the Court file.

10. All extant applications (other than any applications for costs) be dismissed.

11. Any application for costs shall be made in accordance with the Family Law Rules 2004.

IT IS DIRECTED

1. Given the implicit and explicit threats made by the Father to the mother, Police, Independent Children’s Lawyer and a former Prime Minister of Australia; at the expiry of seven days after the date of these orders, the Independent Children’s Lawyer shall forward a copy of these Orders and the reasons upon which they are based to:-

   12.1the Marshal of the Family Court; and

   12.2the Commissioner of the Australian Federal Police.

2. Leave is given to the Marshal and members of the Australian Federal Police to inspect and copy documents from this Court file.

3. The father is given leave to apply in respect of Directions 11 and 12 above provided such application is made within seven (7) days of this order.

IT IS REQUESTED

1. The mother consider maintaining the relationship between the child and the child’s paternal uncles.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Prentice & Dafora 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 SYDNEY

FILE NUMBER: WOC 292 of 2011

Ms Prentice

Applicant

And

Mr Dafora

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Dafora (‘the father’) had a childhood which he described as having ‘been subjected to various traumas and lacked family stability as a child required to deal with such trauma’.[1]  The father said he had been kidnapped and forced to become a child soldier when aged seven, that he was taught to fire military weapons, including rocket launchers, and that he was forced to use them in combat situations.  He said he witnessed horrific things, many of which he has tried to forget.

   [1] Paragraph 6 of the father’s trial affidavit sworn 29 December 2015 (‘the father’s trial affidavit’)

2. The father was eventually rescued by United Nations Forces, reunited with his family and then moved from Africa to Australia in 2003, as a refugee.  His life in Australia has not been as he could have hoped.  His step-father was incarcerated in 2006 and the father was eventually placed into the care of the then Department of Community Services.

3. In September 2009 the father and Ms Prentice (‘the mother’) commenced a relationship.  At that time each of them was aged 16 and towards the end of 2009 the mother became pregnant with their child A (‘the child’).

4. The child was born in mid 2010 shortly after each of the mother and father attained the age of 17. 

5. The mother experienced some minor socio-emotional, behavioural and academic problems throughout school, however, there was no history of behavioural or emotional concerns or experimentation with substances or association with anti-social peers.

6. The mother appears to have found motherhood challenging and the child protection authorities had a few concerns about her parenting capacity.  An assessment by a clinical psychologist in July 2012[2] made the above observations and assessed that the mother had some mild deficits in parenting skills, but said that the child was attached to the mother and there seemed to be no significant risk of harm or neglect to the child in the care of the mother.

   [2] Report of Ms O 23 July 2012 - Exhibit ICL5.

7. The mother alleged that she has been subjected to physical, emotional and psychological violence at the hands of the father.  Those allegations are denied by the father.

8. The father asserted that the mother inadequately cares for the child and claimed that he is better equipped to look after her.   It is asserted by the mother and the Independent Children's Lawyer that the father has little regard for the court system and western notions of justice.

9. It is in the context of these parties that the parenting arrangements for this five and a half year old child are to be determined.

10. The mother seeks orders that she have sole parental responsibility for the child, that the child live with her and spends no time with the father. In addition the mother seeks orders restraining the father from contacting her or the child, including an order pursuant to s 68B of the Family Law Act 1975 (Cth) (‘the Act’) to arrest the father without warrant, if he breaches that injunction.

11. Further, the mother seeks an order restraining the father from removing or taking possession of the child, and from attending any school or being in the vicinity of any school which the child attends.

12. The father seeks an order that the parents have equal shared parental responsibility.  He does not seek to disturb the arrangement that the child live with the mother.  He seeks orders that the child spends time with him on an increasing basis over six months from a few hours on Thursday and Saturday to five nights per fortnight and about one half of all school holidays.  He seeks orders for changeovers, access to medical and school records, and a requirement that each party keep the other advised as to the health and circumstances of the child.

13. At the conclusion of the hearing the Independent Children’s Lawyer’s submissions were essentially the same as those of the mother.

THE ISSUES

1. There is no issue between any of the parties, the Independent Children’s Lawyer, nor on the evidence that the child should continue to live primarily with the mother.  The issues otherwise fall into a number of areas, namely:-

   (a)        the question of parental responsibility;

   (b)the question as to whether the father ought to spend any time with the child and, if so, what time and how that is structured including whether any time ought to be supervised and the nature of any supervision;

   (c)       the question of the injunction sought by the mother; and

   (d)       the question of the broader orders sought by the father.

2. There will need to be findings of fact in relation to:-

   (a)the allegations of violence perpetrated by the father in terms alleged by the mother;

   (b)findings of fact as to the mother’s alleged fear of the father (whether genuine or not);

   (c)the ability of the parties to co-parent in order to enable some form of shared parental responsibility order;

   (d)the current circumstances of the father as to whether he presents an unacceptable risk to the child into the future, having regard to the allegations of past violence;

   (e)questions as to whether the father was abusive and/or intimidating to the staff at a Contact Centre;

   (f)whether the father made threats to the Independent Children’s Lawyer in relation to the outcome of these proceedings; and

   (g)the impact of the evidence of the exchange between the father and a Federal Circuit Court Judge in Wollongong on 8 July 2015.[3]

   [3] Transcript of Proceedings dated 8 July 2015. – Exhibit ICL7.

BACKGROUND

1. The mother is presently aged 22 and in her initiating application described her occupation as ‘home duties’.  There are no relevant issues as to the mother’s health.

2. The father is aged 22 and describes his occupation as a ‘practicing Muslim’.  He was cross-examined in relation to this and described a life of prayer and said that about two years ago he became mature in his religion.

3. The father was born in the African country of Z, during a civil war.  He lived with his grandmother and older sister in the capital of Country Z.  His parents worked and lived in neighbouring Country Y.  When he was seven years old, rebel soldiers abducted him and he was forced to be a child soldier.  He was taught to shoot guns and rocket launchers and forced to use them in combat situations.  He witnessed horrific things, many of which he has tried to forget.

4. After about six months as a child soldier, the father was rescued and taken to a rehabilitation facility in Country Y.  Whilst he was there he was reunited with his family.  In 2003 he was granted refugee status and subsequently immigrated to Australia.  His elder sister remained in Country Z.

5. When the father was aged about 13 years old, his step-father was convicted of a serious crime and sentenced to prison.  In the circumstances of that incarceration the father, as an adolescent child, and his mother clashed.  The father was placed into the care of the then Department of Community Services.

6. The father and mother commenced an intimate relationship in about September 2009, at which time they were both aged 16.  The parties spent time together, but it appears that their relationship was such that they did not cohabit in the sense of a de facto married couple.[4]

   [4] Paragraph 4 father’s trial affidavit and paragraph 5 of mother’s trial affidavit sworn 1 December 2015

7. In about October/November 2009 the mother fell pregnant with the child, who was subsequently born in mid 2010 and is now aged about five and a half years.  The parties ended their relationship on a final basis in either late January 2011 or February 2011.

8. On 17 March 2011 the mother took the child to spend time with the father.  The father retained the child and she was not returned to the mother until 31 March 2011 following a recovery order being made by a Court.

9. Proceedings were commenced on 23 March 2011, and on 14 April 2011 orders were made by consent in the Local Court that the child live with the mother and spend time with the father.  The proceedings were transferred to the then Federal Magistrates Court.

10. On 30 May 2015 an apprehended domestic violence order was made (by consent) on the application of New South Wales Police at the Local Court.  The order, which was designed to protect the mother and child from the father, was put in place for twelve months.[5]

    [5] Annexure B to mother’s affidavit -pages 25, 26 and 27 of 41.

11. When the proceedings were transferred into the Federal Magistrates Court, a family consultant prepared a Memorandum to the Court noting that ‘the father has agreed that he would be willing to undertake a parenting course’.[6]  The father gave evidence that he had completed the parenting course, but he provided no documentary evidence in that respect.  I have concerns as to the veracity of that evidence.

    [6] Exhibit ICL 6 page 3.

12. After the hearing in the Federal Magistrates Court the child spent supervised time with the father.  This took place at the father’s home unit. 

13. On 14 September 2011 the parties attended mediation.   An agreement was reached that the father spend time with the child and such time was to be supervised by the maternal grandmother.  It was agreed that unsupervised time would follow after approximately four visits.

14. On 28 September 2011 the mother agreed to the child spending unsupervised time with the father, however, the child exhibited distress at the changeover.

15. On 29 September 2011 the child spent four hours with the father and she was upset at that time.  There was conflict at the time of changeover, which I have briefly discussed later in these reasons. Following this incident the mother was afraid for herself and for the child.  She arranged for supervised time through a children’s contact service.  This was to occur every Thursday for two and a half hours.  The mother’s evidence, which I accept, was that during this time the child was upset going to the father.

16. Some supervised and unsupervised time took place in the final quarter of 2011.

17. There was some evidence that the father was using illicit drugs over that time and was at times affected by such drugs.  In any event, the child spent time with the father.

18. On 27 February 2012 parenting orders were made by consent for the appointment of a single expert, that the child live with the mother and spend time with the father.  One of the changeover options was to be at the F Railway Station.

19. The mother completed a course at Brighter Futures and commenced to work with Barnardos and later completed a ‘Keeping Kids in Mind’ course at Catholic Care.

20. In May 2012 Ms O was appointed a single expert.  On 22 July 2012 her report issued.

21. On 8 November 2012 these proceedings had been listed for hearing and on that date interim orders were made.  These provided that the child live with the mother and spend time with the father.  The parties were to complete a ‘Keeping Kids in Mind’ course at Catholic Care (‘the Catholic Care Service’).  The mother was to attend a local government-run support service for advice in relation to nutrition and continue to attend upon her psychologist.

22. The father was to obtain a mental health plan and was referred to a psychologist to address matters raised by Ms O in her report.

23. There was no reliable evidence that the father obtained the mental health plan or that he consulted a psychologist as directed.

24. During 2013 the parties were subjected to urine analysis, and initially the results were negative.  On a number of occasions the father did not comply with the requests.

25. On 13 March 2014 interim orders were made that the mother have sole parental responsibility, that the child live with her, and that assessment be undertaken for the child for supervision, through the Catholic Care Service.

26. On 4 November 2014 the Apprehended Violence Order in favour of the mother was extended for a period of twelve months.

27. Supervised time through the Catholic Care Service commenced in December 2014, but ended in February 2015.  Findings are made in relation to that later in these reasons.

28. The father has not spent time with the child, except on one occasion with the single expert, since February 2015. 

29. On 8 July 2015 the father made concerning remarks at a directions hearing before a Federal Circuit Court Judge. 

30. On 28 August 2015 this matter was transferred to the Family Court and later Ms H was appointed as the single expert to prepare a report.  She subsequently prepared two reports: one in December 2015 and one supplementary report in January 2016.

31. These proceedings were heard on 11, 12 and 13 January 2016 at Sydney.

32. The father did not see the child between July 2013 and December 2014.

33. In these reasons any statement of fact is to be regarded as a finding of fact unless the contrary is clear from the context of the statement.

THE LAW

1. The provisions of the Act that deals with children are set out in Part VII of the Act, in particular s 60B articulates the objects and the principles underlying them as follows:-

   (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. A statutory presumption, albeit a rebuttable presumption, is created by s 61DA (1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. 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. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.

1. The torturous terminology of the section is thus that the Court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.

2. If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-

   (a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;

   (b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.

   (c)In the context of these determinations, section 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and section 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.   

3. Another step in the statutory path is contained in s 60CA, which 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 and consequently in determining the child’s best interests the Court must consider the matters set out in s 60CC.

4. In Maldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests.

Unacceptable Risk

1. Where the alleged facts in a particular case may enable a finding that children are at risk of violence, abuse or neglect, the Court in determining what orders should be made needs to balance the risk to the child or children against the importance of retaining parental ties.  What is an unacceptable risk?

2. In Theophane & Hunt (Final Parenting Orders) [2014] FamCA 1038 His Honour Justice Tree gave consideration to the notion of unacceptable risk and said:-

   51.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.

   52.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.

WITNESSES

The mother

1. The mother gave evidence in accordance with her trial affidavit sworn 1 December 2015.  Paragraph 35 of her affidavit was not read.  Given the allegations of family violence, the mother gave evidence from a remote location.  She was clear when giving her evidence and was not seriously shaken in cross-examination by either counsel for the father or counsel for the Independent Children’s Lawyer.

2. The mother gave evidence that a provisional apprehended violence order had been made on 8 January 2016 following some information provided by the Independent Children’s Lawyer.[7]

   [7] Letter 14 December 2015 – Exhibit ICL9.

3. I am satisfied that the mother endeavoured to give evidence truthfully from her own subjective perspective.  She seemed to listen to the questions and at times made answers against her interests.  I am satisfied that her evidence is generally reliable.

4. The mother gave cogent evidence in relation to assaults upon her and upon others when she was present, and observations of the father’s behaviour.  The father denied any such physical violence.  Counsel for the father said the mother’s evidence was vague in detail.  I am satisfied that the evidence of the mother, in respect to the violence, was cogent and clear. 

5. There was a submission by counsel for the father that there were other witnesses whom the mother could have called, such as the mother’s friend.  However, given the broader documentary support of the mother’s assertions, including police reports and the like, I am satisfied that the mother’s accounts are accurate.  This is particularly having regard to the poor quality of the father’s evidence.

The father

1. The father gave evidence in accordance with his affidavit sworn 29 December 2015 (‘father’s trial affidavit’).  He described his occupation as being a practicing Muslim and said that two years ago he became mature in his Islamic belief.  He says he no longer consumes alcohol and that he is deeply committed to his religion.

2. The father was not an impressive witness.  He was disdainful of the court process and was at times rude and insolent in terms of questions and answers.  There were occasions where he would almost ‘sing’ an answer saying ‘no no no no no no no’.  

3. When presented with difficult questions he would often answer with the expression ‘I can’t remember’ in circumstances of difficult issues and facts.  I did not believe that his memory had been exhausted; rather it was more likely that he was avoiding answers.  At one stage he started echoing the questions.

4. Such was his conduct that on one occasion I reminded him that his evidence was an important part of the case and that I wanted to know his story.  I said he needed to be frank and clear with me.  This caution made no difference to his demeanour or attitude.

5. In these reasons I will set out some of the examples which gave rise to these findings, but such was the number of them I do not intend to set out all of them.

6. There was some suggestion by the experts that the father had no insight.  My assessment of him was harsher.  Listening to him give evidence, I concluded at times that the father knew what was happening, and likely had insight into the impact of his behaviour, but that either he did not care about it or used it as a device.  Either way his behaviour has had serious detrimental impacts on the child.

7. An example of this was his denials of any misbehaviour in relation to the events on the last two days of contact with the Catholic Care Service, the details of which I have dealt with later in these reasons.

8. The father denied violence to his previous partner despite police criminal records to the contrary.  The father’s curious approach to evidence could be seen in his blanket denials of violence. 

9. The father was cross-examined in relation to violence with regard to his mother in 2006 and violence in relation to his former partner in 2008 or 2009.  He challenged the relevance of that evidence and then asserted he had no specific recollection.

10. When the father was questioned about a letter which had been sent to him from Legal Aid[8] he asserted that the material contained in that letter was untrue.  He denied he used those words.

    [8] Exhibit ICL9.

11. He asserted that the transcript of the proceedings in the Federal Circuit Court[9] was not accurate.  The father described the records from the Catholic Care Service as 99.9 per cent false.

    [9] Exhibit ICL6.

12. In her December 2015 report Ms H observed:-[10]

    …     his [the father’s] thoughts were tangential and when responding to questions [the father] consistently referred to ‘Allah the Most Merciful’ making it difficult to elicit answers to specific questions.

    [10] Page 11.

13. Whist the father did not overly refer to God during the course of cross-examination he clearly found it difficult to respond to specific questions.  In his answers he prevaricated and obfuscated.

14. At one stage during cross-examination he denied a conversation to which he himself deposed in his trial affidavit.[11]  In his affidavit he acknowledged that his personal history affected his life, but in oral evidence he denied that he said this.  He was avoidant, confrontational and dismissive of the court process.

    [11] Paragraph 44.

15. He asserted to the Court, as he did to the single experts, that the events of his childhood did not affect him.

16. I can give the father’s evidence little weight unless it is supported by other reliable evidence.

Ms O - Psychologist

1. The report of Ms O dated 23 July 2012 was read into evidence without objection.  There was no issue taken as to her qualifications.  I have had regard to that evidence and given it significant weight.

2. Ms O recommended that the father engage in psychological treatment to address his childhood trauma, his medical condition in relation to his family, problems regulating his emotions and controlling anger.  She provided recommendations as to institutions which could provide that assistance.  Following her report an order was made in the then Federal Magistrates Court which provided, inter alia, that:-[12]

   11.That within 7 days of the date of these orders, the Father is to attend on his General Practitioner for the purpose of undergoing assessment and, if deemed appropriate by the General Practitioner, obtaining a Mental Health Plan and a referral to a Psychologist to address the matters raised by the single expert report of [Ms O]…

   [12] Dated 8 November 2012.

3. The father did not follow the advice or adhere to the order.  He provided no cogent reason for adopting that course.

4. Ms O went on to recommend the father may benefit from in depth counselling and assistance regarding children’s needs and responses.

5. I accept the reliability of evidence of Ms O.

Ms H

1. A report was prepared by another court expert, Ms H, who is a registered clinical psychologist.  She provided her substantial report dated 3 December 2015[13] and a supplementary report dated 8 January 2016.[14]

   [13] Exhibit ICL3.

   [14] Exhibit ICL4.

2. In Ms H’s report she provided details of her professional qualifications; she is a registered Forensic Psychologist and has a Master’s Degree in Psychology.  She has over 20 years’ experience in private practice, which included the assessment and treatment of adults and children with mental health and relationship problems.  She is experienced in conducting assessments and writing reports for criminal, children’s court and family law proceedings.  No issue was taken as to her qualifications. 

3. Her reports were tendered into evidence without objection and Ms H was made available for and was cross-examined.

4. In addition to the report, Ms H related in oral evidence that when she took the child to visit the father for an hour she said that the child was initially reluctant to go and sought reassurance that the mother would be available to pick her up.  Ms H said when she went to see the father at the park the child took Ms H’s hand and that the child was initially quite reluctant.  She said that the child interacted well with the father during the time she was there, but was ready and happy to leave when that time arose.  A case worker assisting the father, Ms R, was present at that time.  I am satisfied that this contact went reasonably well for the child.

5. Ms H observed that the father was focused on his ‘right’[15] as the child’s father and demonstrated little understanding of what would be required to provide a safe and nurturing environment for the child that would meet her developmental, emotional, psychological and physical needs.

   [15] Report of Ms H 3 December 2015 page 15.

6. Amongst her comments Ms H observed that:-[16]

   The child’s attachment with the father has been compromised and the child is not securely attached to the father notwithstanding the time she has spent with him from infancy.

   [16] Ibid at page 17.

7. As to the father Ms H observed of him that he had little ability for self-reflection with respect to his own experiences in childhood and his parenting of the child.

8. Ms H made recommendations in terms of the style of contact the child should have with the father should an order to that effect be made.  In evidence Ms H made it clear that she made no recommendation in that respect and was strongly of the view that the child ought not to spend time with the father until the father had dealt with his personal issues.  I accept that evidence.

9. The father was not frank with Ms H.  An example of this was that the father asserted he had not been convicted of any criminal offences.[17] She observed:-[18]

   [The father] denies any prior involvement with the criminal system saying he has never been convicted of an offence. While he acknowledges that an AVO is currently in place to protect [the mother] he denies there was any need for an AVO to be issued. [The father] says that he has never posed a risk to [the mother] and cannot understand her being fearful of him.

   [17] Ibid page 13.

   [18] Ibid.

10. The father clearly has a significant history of criminal convictions.

11. Ms H gave evidence that the father did not acknowledge the jurisdiction of police and courts, and that he viewed apprehended violence orders as illegitimate.

1. When under cross-examination Ms H said that the father was unpredictable.  Given the evidence of his involvement with the child since 2011 that is an entirely reasonable factually based comment to make.

2. In relation to the termination of the service by the Catholic Care Service, Ms H said that it was unusual for a service to withdraw assistance.  In terms of the father’s behaviour at the service, she said the child would be confused.

3. Her strong evidence was that, before any time started with the child, the father needed to address his own emotional needs.  She said that this would need to be done over a significant period of time, at least at a minimum six to twelve months with weekly sessions, then perhaps reducing to fortnightly sessions.  It is clear from her evidence that she was looking at treatment over a significant period of time in circumstances where the father has rejected that notion over the many years that this litigation has been conducted.

4. I accept her evidence in that respect and I find that it is unlikely that the father will adopt that course. 

5. I accept the evidence of Ms H as frank, balanced and reliable.  Her opinions were based on generally reliable facts and her conclusions are soundly based.

FINDINGS

Violent events

1. The mother said that on 29 September 2011 the child was to spend four hours with the father.  When the mother attended to collect the child she had a male friend with her.  When the father saw the male friend he asked aggressive questions and stepped towards the friend, with a raised fist.  The mother placed herself between the father and her friend and she was pushed out of the way by the father.  The father telephoned the mother later that evening and said, of the friend, ‘next time I see him I am going to break his jaw in’.[19]

   [19] Mother’s trial affidavit paragraph 64.

2. The father denied this violence.  However, given the quality of his evidence and the general nature displayed by him, I am satisfied that the mother’s evidence in this respect is reliable.[20]

   [20] Ibid.

3. On 30 January 2013 the mother asserted that the father had asked for her to change the child’s name and offered her a present.  When the mother rejected that request, the mother deposes that the father became angry and made threats to her.[21]  I accept the mother’s evidence in that respect, that is, that she was the subject of threats by the father.

   [21] Ibid 160.

4. Counsel for the Independent Children’s Lawyer sought to tender a file note of a telephone conversation between her and the father on 10 December 2015.  She also sought to tender a letter from the Independent Children’s Lawyer to the father following that telephone conversation.[22]  At that time the father was acting for himself and the Independent Children’s Lawyer contacted him by telephone.  The father was asked what was happening with his legal representation and if he intended to file an affidavit.  The Independent Children’s Lawyer was told by the father that she ‘should talk to Prime Minister Tony Abbott about it’.[23]

   [22] Exhibit ICL 9.

   [23] Ibid.

5. In part of the conversation which occurred at that time, the father said words to the effect that he would ‘turn up in court in January and when the court makes its bogus decision there will be a “big problem”’.[24]

   [24] Ibid.

6. She also asserted that the father told her that there was going to be ‘violence and retaliation’ between the father and the mother, and that the Independent Children’s Lawyer should speak to ‘King Feral, the oppressor in Canberra’.[25]

   [25] Ibid.

7. The Independent Children’s Lawyer wrote to the father confirming the conversation and also informed the mother of that conversation.  Apparently the letter was used as part of a basis for an interim apprehended violence order.

8. The father denied making any such comments.  The Independent Children’s Lawyer was available to be called for cross-examination on the file note and letter, which were tendered by consent, but she was not required to be cross-examined.

9. I do not accept the father’s denial of what was alleged to be said.  I accept that these were threats and intimidation made by the father, which were intended to intimidate the Independent Children’s Lawyer and the mother.

10. In cross-examination of the mother she said that she would be open to the child seeing the father in ten years time when she was able to manage the father’s behaviour.  The mother had clearly not thought this through particularly carefully and the implication of the evidence would be for the child to make up her mind at that time.

11. From the mother’s evidence, I find that she is afraid of the father and is intimidated by him.  The mother says, and I accept, that she believes the child is not safe with the father because of his violent, aggressive and intimidatory behaviour.  Given the father’s history, that fear is well based.

12. The mother was significantly affected by the removal of the child from her care in March 2011. Given the broader evidence, the mother’s continuing fears in this regard are soundly based.

13. The mother gave evidence that she was intimidated by the father during the course of the relationship and that he suggested that she was cheating and seeing other men.  She said that often the father would be intoxicated.  She gave cogent evidence in relation to the violence and abuse throughout the relationship and following the relationship breakdown.  I accept the accuracy of that evidence.

14. In cross-examination by the Independent Children’s Lawyer the mother said that she was open to the father receiving school reports, but was worried about school photos.  She said that the child was upset in seeing the father and conceded that neither she nor the family discussed the father in the presence of the child.  She also acknowledged that the child probably picks up her anxiety in seeing the father.

15. The mother was cross-examined in relation to Ms O’s reports, but said that she had not read all of it.  It is clear that the mother had difficulties reading and understanding the report.  Given some of the psychometric assessment, particularly by reports from Ms O and Ms H, that is unsurprising.

16. Interestingly the mother, at one time, expressed concerns that the father may have sexually interfered with the child however, after seeking medical advice she was satisfied that there was a plausible explanation to that suspicion and accepts that the father did not, in any way, abuse the child.

17. I find that the father displayed controlling and self-centred behaviour and lack of child focus in terms of his interaction with the Catholic Care Service when he was to have supervised time with the child in early 2015.  The Catholic Care Service notes are informative.[26]  The father had undertaken the assessment for the Catholic Care Service and I am satisfied that he entered into an agreement with that provider.  That agreement included that he moderate his aggressive and controlling behaviour.  Yet he did not moderate his behaviour.

    [26] Exhibit ICL1 pages 64 to 78.

18. Examples of this include that on 16 January 2015 he was talking to the child about living with him.  When this was raised with him by the case managers, he refused to accept or acknowledge their concerns.

19. The father was also instructed to wait fifteen minutes before he left and, despite requests from staff, did not do so.  He was again reminded on the next occasion and simply explained that he was ‘very busy and had other things to attend to’.

20. He made a somewhat bizarre comment on 10 February 2015 which is recorded in the notes.[27]  This was in circumstances where he made a comment in relation to religion and stated that he could ‘stab the case manager or himself or any other person that is meant to be, and there is no control over that’.

    [27] Ibid page 69.

21. The father denied any inappropriate engagement with the service and said simply that he was telling the truth and that they were incorrect.  I do not believe him.

22. On 13 February 2015 the father endeavoured to direct the child to pray with him.  This was by way of a direction to the child, not a request. The evidence from the notes is that the child did not wish to do this and said ‘no’.  The father persisted with these requirements.  The case manager stepped in and asked the father if the child was okay with this and the father replied ‘don’t you speak’.  He glared at the case manager and the father’s aggressive and poor behaviour escalated.  Endeavours were made by staff to calm him down and the father engaged in yelling and frightening behaviour.  The child began to cry.  The detail of this is set out in the report from the Catholic Care Service.

23. The father was demanding, controlling and abusive.  A security guard was needed to come into the room.  The father said things such as:-[28]

    ‘You people don’t know who you are playing with! You really don’t know!’

    ‘Keep writing down your negative notes! You will get CSI [sic] from writing so much’

    ‘You know what they say in the news about Catholic Care its true I can tell you that’

    ‘I love people like you!  You’re so stupid that you don’t who you are playing with’

    ‘Are you retarded’

    ‘Can you not interrupt me please’

    [28] Exhibit ICL1 page 74.

24. Unsurprisingly, the Catholic Care Service declined to provide any further supervision for the father in seeing the child.  The father’s inappropriate behaviour occurred in the presence of the child and when he was holding the child to him.  The father did not acknowledge the impact of that upon the child and dismissed it.

25. I am satisfied, from the context, the stabbing remarks and the other events were an endeavour by the father to intimidate the case workers and create fear in them, which outcome he achieved.

The father’s criminal record

1. The father has a criminal record from 2006 (when he was aged 13).  This includes:-

   ·8 July 2008 the father assaulted a police officer in execution of his duty, resisted a police officer in the execution of his duty and intimidated police officers.  He was placed on probation for fifteen months.  (he was a juvenile at the time of the offences)

   ·23 March 2009 it was alleged he breached a bail determination.

   ·9 March 2009 it was alleged that he contravened a restriction in an Apprehended Violence Order.

   ·March 2009 the father was alleged to have contravened a prohibition in an apprehended violence order.  For each of those contraventions he was placed on a fifteen month supervised Juvenile Justice Probation order.

   ·25 May 2009 the father was convicted of assault occasioning actual bodily harm and contravening a prohibition or restriction in an apprehended violence order.  He was placed on probation for twelve months.

   ·10 August 2009 the father was committed for sentence of recklessly wounding another person.  He was sentenced to twelve months fully suspended and was required to undergo counselling.

   ·a number of dishonesty matters including ‘break and enter’ during 2009.

   ·23 October 2010 the father was fined $200 for possessing a prohibited drug.

   ·27 May 2014 the father was convicted of assault occasioning actual bodily harm and fined $500.  He was convicted of destroy or damage property and was fined $400.

2. I am satisfied that the father has a history of violence and social disobedience.

3. In her affidavit the mother sets out details of violence during the relationship.[29]  Counsel for the father submitted that I ought to give this little weight as supporting evidence was not provided.  Given my assessment of the father’s evidence and given the evidence generally I am satisfied that the mother has honestly recounted the violence which she encountered over that time.  This included verbal abuse, a physical altercation and an extraordinary event in March 2010, where he dragged the mother by the feet and threw her out of the house, when she was about five months pregnant with the child.

   [29] Mother’s trial affidavit paragraphs 6 to 22

4. Following the birth of the child, the verbal, emotional and physical violence continued.  It was such that comments were made by staff at the hospital in terms of the father’s controlling behaviour.[30]

   [30] Exhibit M3 and Exhibit M4 ‘contact report 7/7/10’.

5. In her affidavit material the mother sets out the events in some detail.[31]  One of these involved the father slapping and hitting the mother, verbally abusing her and punching the maternal grandfather’s car.

   [31] Mother’s trial affidavit paragraphs 23 to 34.

6. Another event occurred on 31 December 2010 where the father was violent to the mother’s friends when the mother was present.

7. The mother deposed that on 16 March 2011 the father asked to spend time with the child, but said she was unable to facilitate the visit on that day.  The following day she permitted the father to spend unsupervised time with the infant child.  The father retained the child and in a telephone call to the mother said the child would not be returned.  On 18 March 2011 the father telephoned the mother and said “You’re not going to see [the child] again”.  This amplified the mother’s distress.

8. During the period of time that the father retained the child he telephoned the mother who in turn could hear the child crying and calling “Mum, mum, mum.”[32]

   [32] Ibid paragraph 49.

9. An order was made on 31 March 2011 (some two weeks later) recovering the child.  On the return of the child the father gave the mother a nappy bag with no contents.  The mother deposed that “I caught a train back home with [the child] with no nappy or change of clothes”.[33]  The mother deposed that the child was really quiet with her and was distant at the start.

   [33] Ibid paragraph 48.

10. This retention had a profound negative impact on the mother, and she remains fearful of such a retention reoccurring.

11. An example of the father’s lack of frankness in giving evidence arose out of the issue of fact when he retained the child in March 2011.  The father asserted he had retained the child so that he could deal with her illness at that time.

12. The mother claimed the father said to her that:-

    You won’t see [the child] again.

13. The father prevaricated in relation to that evidence and said that he added the words ‘until she recovers’.

14. I find that the father’s explanations for the retention were self-serving and I do not believe him.  The father showed no insight as to the impact of that action upon either the mother or child.  

15. On 17 July 2013 there was another incident of violence.  The child was spending time with the father and the mother had arranged for the maternal grandfather to collect the child.  The father rang the mother and told her he was not returning the child.  This was the second time that the father had sought to retain the child.

16. The mother went to the police and unfortunately the mother’s family took matters into their own hands.  There was an altercation between the father and child’s maternal uncle, T, during which the father was stabbed.  The child saw the blood.  Nobody comes out of this incident with any credit.  However, the father entirely blames the mother’s family in circumstances where the father had sought to retain the child where he ought not to have done so.

17. Records from Child Protection Authorities support the mother’s view of this evidence by way of consistent statements at that time and the father’s discussions with officers of the Department.[34]

    [34] Exhibit ICL1 pages 25 and 26 – information collected on 18 March 2011.

Proceedings before Federal Circuit Court on 8 July 2015

1. These proceedings were before the Federal Circuit Court on the above date and the transcript of those proceedings was before this Court.

2. There are a number of particular exchanges to which I have made reference although I have considered all of the exchanges.

3. The father threatened the mother in an exchange with the Court:-[35]

   [The father]:   And now what I’m going to say here, okay, the mother have to obey what I implement.  If she does not obey this, we will ... by atonement, punishment.  Okay.  You see, in my judgment I’m just because Allah all Mighty, he is – he is the best of all judges, okay.  In my judgment, I’m going to judge you, I’m just.  Three and a half days I was going to implement for the mother to have [the child] and I have [the child] three and a half days, okay.  But before we do this, I would like for the mother to obey these.  I would like for the mother and I to have a mediation, okay, so we can be more flexible about things.  And if she refuse this, we will see the – we will see the atonement.  We’re going to give her calamity one.  We’re going to afflict her with calamity three times, right.  If she repents, if she asks for forgiveness within those two periods – those two periods, right, the most merciful will forgive her but if she does not we will ... and then we will ... her, and she forfeit.  But anyway, listen, listen here, all right. What I’m saying is this is serious, this is serious.  I don’t need no one to intercede for me and she have to follow what I just said and if she fail me with what I just said, to comply, okay, Allah all Mighty, he is the own hearing right now.  He is here ‑ ‑ ‑ 

   [35] Transcript of Proceedings dated 8 July 2015 page 4 - lines 8 to 23.

4. Counsel for the father said that there were alternate explanations for this. It is clear that the father was demanding that the mother obey what he implemented and that consequences would follow. He went on to say that there would be a calamity.  Later in the exchange the father observed of the mother:-[36]

   She [the mother] is going to taste nothing but torment.

   [36] Ibid. page 5 - line 3.

5. During the course of the proceedings the father was asked if he would participate in the process of the single expert interviews and reporting and his response was ‘I reject everything’.[37]  The father went on to say:-[38]

   [The Court]:Yes, all right.

   [The father]:   Like I say if she fail to comply with this we will seize her in atonement and punishment.

   [The Court]:Okay.

   [The father]:   And after the most merciful she will return and then we will punish her with severe punishment in the year after.

   [37] Ibid page 7 - line 17

   [38] Ibid page 8 - lines 5 to 13.

6. Towards the end of the hearing the father made an outburst about the jurisdiction of the Court saying:-[39]

   [39] Ibid page 9 - lines 15 to 47 and page 10 - lines 1 to 16.

   [The Court]: I’m going to ask for the transcript of this afternoon to be taken out and made available to each of the parties to the proceedings.

   [The father]:  Beautiful.  Love that.  Is that it?

   [The Court]: No, don’t go as yet.  Just – please be with me just a moment, thanks.

   [The father]:  Go ahead.

   [The Court]:I’m going to make orders in accordance with the document that I have marked A, initialled and dated today’s date.

   [The father]:  You people has not done anything but cause corruption.

   [The Court]:I am going to      

   [The father]:  Corruption and corruption and corruption.  Justice – you – all you do is evil, prevail evil.  Evil;  nothing but evil.

   [The Court]:I am going to confirm the hearing of this matter on 16 February – 16 December this year.  I’m going to direct that any evidence in this case      

   [The father]:  Go ahead.

   [The Court]:…   must be filed and served no later than 4 December.  I will make the usual directions about the payment of the hearing fee as well as the provision of affidavits, case outlines, etcetera.  I am going to direct the respondent father     

   [The father]:  Fear Allah.  Fear Allah.  Fear Allah.

   [The Court]:….. to comply with all reasonable directions of the      

   [The father]:  Fear your creator.  Fear your maker.

   [The Court]:….. independent children's lawyer in relation to participation in all interviews.

   [The father]:  And obey me.  Fear Allah and obey me.

   [The Court]:I note the representations of the independent children's lawyer that it is unlikely that the father would be required to contribute towards the costs of the preparation of the report.

   [The father]:  Never.

   [The Court]:I grant leave to relist on 72 hours notice.

   [The father]:  As-salaam alaikum.  Peace be with you.

1. The father was not given an opportunity to address in respect of these proposed orders.  Given the nature of the threats and my findings, contained in these reasons, that they existed, it is appropriate that I consider the course that I have outlined above.

2. The father should be given leave to apply in relation to whether such notice ought or ought not be given.  The time for such application ought to be somewhat constrained and I have done so.

I certify that the preceding two hundred and fifty two (252) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on     19 February 2016.

Associate:     

Date:              19 February 2016