Re Leila (Children - contact)
[2003] FMCAfam 374
•11 September 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| Re Leila (Children – contact) | [2003] FMCAfam 374 |
| FAMILY LAW – Children – parenting orders – contact – whether father should have any contact with the child – allegations of extreme abuse of the child and the mother by the father – contact denied. |
Family Law Act 1975 (Cth), ss.60B, 65E, 68F(2), Part VII
B & L [2001] FMCAfam 84
| Applicant: | RA |
| Respondent: | KE |
| File No: | PAM2368 of 2002 |
| Delivered on: | 11 September 2003 |
| Delivered at: | Sydney, by telephone to Parramatta |
| Hearing dates: | 14–15 August 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr J Levy |
| Solicitors for the Applicant: | Levy Partners |
| Respondent appeared in person. |
| Solicitors for the Child: | Legal Aid Commission of NSW |
ORDERS
That the child of the marriage, LEILA, born 10 February 1993, live with the mother.
That the mother be responsible for making decisions about the child’s long term and day to day care, welfare and development.
That there be no order for contact between the father and child.
That the father be restrained from knowingly approaching within 50 metres of the child’s school and any residence in which the mother and the child may be from time to time residing.
That the father be restrained from approaching, contacting or otherwise interfering with the child other than in accordance with orders for contact.
That for the purposes of order 5 hereof, it be noted that there are no orders for contact in force as at the date of the making of this order.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM2368 of 2002
| RA |
Applicant
And
| KE |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for parenting orders in relation to one child, LEILA (not her real name), born 10 February 1993. The mother proceeds on an amended application filed on 27 February 2003. She seeks the following orders:
(1)That the child of the marriage, Leila, born 10 February 1993, live with the mother.
(2)That the mother be responsible for making decisions about the child’s long term and day to day care, welfare and responsibility.
(3)That there be no order for contact between the father and child.
(4)That the father be restrained from approaching within 50 metres of the child’s school and any residence in which the mother and the child may be from time to time residing.
(5)That the father be restrained from approaching, contacting or otherwise interfering with the said child other than in accordance with orders for contact.
(6)That for the purposes of order 5 hereof, it be noted that there are no orders for contact in force as at the date of the making of this order.
(7)That the father forthwith return to the mother her personal documents which include but are not limited to her passport, immigration papers for herself and the child.
The mother’s application is supported by her affidavit filed in court on 14 August 2003 as well as by affidavits by the maternal grandfather filed on 11 June 2003 and affidavits by two maternal aunts of the child, filed on 30 April 2003. A notice of child abuse or risk of abuse was also filed on 26 August 2002. That notice describes the following acts:
b)multiple physical assaults upon the child by the respondent father while living in Turkey during 2000/2001 by striking the child with a closed fist and in Australia following their arrival here on 26 June 2001;
c)father has threatened the child and the mother with a knife;
d)father has on numerous occasions disciplined the child by using excessive and inappropriate physical violence;
e)father has verbally abused the child;
f)father has physically assaulted and verbally threatened and abused the mother in the presence of the child.
It appears that no action has been taken on that notice by the Department of Community Services (NSW), possibly because the child lives with the mother and has had no contact with her father for the last two years, and possibly because the orders sought by the mother would, if granted, deal with the risk faced by the child.
The mother’s application is opposed by the father who proceeds upon his response filed on 1 April 2003 and his supporting affidavit filed in court on 14 August 2003. The father was represented by solicitors at the time his response was filed and at the time his affidavit was prepared. However, his solicitors have ceased to act for him. He represented himself at the trial of this matter.
I also have before me a family report dated 12 August 2003 prepared by Mr Brian M Sheridan, a family and child mediator. In addition, four exhibits were tendered, which are a New South Wales Police Service Miscellaneous Property receipt (exhibit A1), a copy of the visa granted to the family to travel to Australia (exhibit A2), and two drawings done by the child at the time she was interviewed by Mr Sheridan (exhibits A3 and A4).
This family came to Australia in 2001 from Turkey. They originally came from Iran but left that country for Turkey as a result of religious persecution. The family are adherents to the Baha’i faith. A permanent residence visa was granted to the family in Turkey by Australian authorities. The family members are now eligible to apply for Australian citizenship.
Both maternal grandparents and all siblings of the mother live in Australia. Very soon after the parties arrived in Australia they separated. The mother complained of abuse of herself and the child by the father. Following the intervention of the Baha’i Assembly in Sydney there was an attempted reconciliation between the parties which was unsuccessful. The parties have lived separately for two years and the father has had no contact whatsoever with the child over that period. The mother seeks, by this application, to maintain the status quo. She also seeks documentation necessary for her to apply for Australian citizenship on behalf of herself and the child. I dealt with the issue of the documentation at the conclusion of the trial on 15 August 2003. The question of contact remains to be dealt with. Although in his response filed on 1 April 2003 the father seeks extensive contact with the child, at trial under cross-examination he modified his approach. He had some difficulty articulating precisely what contact he was seeking and ultimately left the precise nature of the contact he should have with the child to the Court’s judgment. The father seeks as much contact with the child as he can obtain.
Relevant law
I referred to the relevant principles in a parenting case in B & L [2001] FMCA fam 84. Parenting orders arise in proceedings that result from Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The overriding principle in such proceedings is that the best interests of the child is the paramount consideration: s.65E of the Family Law Act. Subject to that, s.60B sets out the objects of Part VII and the principles which underlie those objects. The four principles are:
(1)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.
(2)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.
(3)Parents share duties and responsibilities covering the care, welfare and development of their children.
(4)Parents should agree about the future parenting of their children.
These are only principles, not prescriptive rules, and the best interests of the particular child in this case remains the paramount consideration.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in s.68F(2). It is clear from that provision that the list of factors is not closed and that the infinite variety of individual children’s circumstances can be addressed.
Consideration and findings
The child’s wishes
Leila has a vehement wish to have no contact with her father. She has expressed that wish in the strongest possible terms. Mr Sheridan was unable to persuade Leila to be interviewed with her father when he interviewed the child and the parents. At paragraph 27 of his report Mr Sheridan states:
Leila was resolute in her contention that she had no wish to ever have contact with her father. Leila was also resolute in her determination that she would not see her father for the purposes of this assessment.
Under cross-examination Mr Sheridan stated that he made several attempts to persuade Leila to change her mind but decided that it would be unwise to persist further. Mr Sheridan also gave evidence that he saw Leila walk past her father on the day of her interview. He stated that Leila would not make eye contact with her father. She lowered her head and walked so quickly so as to almost run past him.
Mr Sheridan asked Leila to draw a picture of herself. She did so: exhibit A3.
Mr Sheridan then invited Leila to draw a picture of her family. Exhibit A4 is that picture:
At paragraph 28 of his report Mr Sheridan states this about exhibit A4:
In response to an instruction to draw a picture of herself and her family, Leila drew a cowering picture of her mother and herself being threatened by a large father figure about to hit them with a stick. On questioning Leila reported that she and her mother had their hands together and raised in front of them so as to prevent her father from hitting them.
In his report Mr Sheridan did not explore the possibility that Leila’s wishes may have been influenced by her mother or some other member of her family. Under cross-examination Mr Sheridan stated that while that was a possibility it was his strong belief that Leila’s views were her own, based upon her fear of her father, which is a genuine fear.
Leila is ten and a half years of age. I must give her views considerable weight. The vehemence and potency of her views, based upon her fear of her father, which I find is a genuine fear, is a compelling factor in these proceedings.
The nature of the child’s relationships
Leila has a normal relationship with her mother and her mother’s family. She has had no relationship with her father for the past two years. Her relationship with her father was limited even before then. The father gave evidence that in Iran he worked 15 hours per day and that parenting responsibilities were largely left to the mother. The mother agrees that the father left parenting responsibilities to her but says that this was a matter of the father’s choice, not his work commitments. The father’s claimed work history in Iran stands in marked contrast to his employment history in this country. The father has not worked since he arrived in Australia. He is a student studying English. He has been studying English for the past two years. Nevertheless, the father, like the mother, required the services of a Farsi interpreter.
It is clear that the child’s current view of her father is characterised by fear. I have already found that that fear is genuine.
The likely effect of any changes in the child’s circumstances
The mother gave evidence, which I accept, that Leila was disturbed when the parties arrived in Australia and suffered emotional trauma, including nightmares. The mother also gave evidence that although Leila’s mental health had improved over the past two years, her nightmares returned when Leila became aware of these legal proceedings and the possibility that she may have to see her father again. Mr Levy, for the mother, submits that the reintroduction of contact with the father would have a catastrophic effect upon the child. I agree with him. Mr Levy and Ms Wearne (the separate representative) both submit that there should be no contact whatsoever between Leila and her father. That is also Mr Sheridan’s recommendation.
The practical difficulty and expense of having contact on a regular basis
I do not need to consider this issue at any length. There would be a practical difficulty if face to face contact were to be ordered, given that the father does not know where the mother and the child are living. That information has been kept from him. The father does know where other members of the mother’s family live and, should he wish to, he could make contact with them.
The capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs
The mother has the capacity to provide both the physical and emotional needs of Leila. I am not satisfied that the father has a comparable, or even an adequate capacity. Under cross-examination the father revealed that he is living in a house with six other persons. He has his own bedroom but proposed that Leila would share that room with him on contact. At the time of the trial of this matter there was not a separate bed for Leila. The father said that he would get one. He said that he did not have the money to get one but that he would borrow the money from the people with whom he lived. The father demonstrated no real knowledge of Leila or of her likes, dislikes or wishes. That is understandable, given that he has not seen her for two years. However, the father was vague on issues as basic as Leila’s birth date, which he put down to confusion over the Persian and English calendars. I am not satisfied that that confusion is an adequate or complete explanation. The father had to be reminded that Leila attends school and so would not be available to be with him on weekdays during school terms. Although the father cross-examined the mother, his questions related to the documentation sought by the mother and their relationship in Iran. He asked no questions relating to parenting issues about Leila. The father elected not to cross-examine the other two deponents.
The child’s maturity, sex and background
Leila is approaching her teenage years. She belongs to the Baha’i faith and, it appears, that religion is important to her family. Her mother will be able to ensure that Leila receives an appropriate religious and cultural upbringing.
The need to protect the child from physical or psychological harm
The mother presented distressing evidence of physical and psychological abuse of herself and Leila by the father. Each and every allegation by the mother is vehemently denied by the father. The mother’s evidence was so distressing that, at one point, her (professional and accredited) interpreter was reduced to tears. There were no tears from the mother. She gave her evidence calmly and clinically. Her demeanour in the witness box made a powerful impression upon me. She was a highly credible witness.
I do not need to repeat the detail of the mother’s evidence. It included evidence of Leila being beaten unconscious by her father and hospitalised. It included evidence of the mother being struck so hard she had to have broken teeth removed. It included evidence of Leila being bound hand and foot with rope and locked in a room with her mother without food or water for an entire day. It included evidence of the father threatening to sexually assault Leila. It included evidence of the mother being beaten unconscious with a length of hose. It included evidence of the father holding Leila against a window and threatening to throw her out. The mother made other allegations, equally disturbing. The mother’s evidence was corroborated in part by the evidence of her father and maternal aunt. The father’s denials were uncorroborated.
On the state of the available evidence it is not possible for me to decide with certainty the truth or falsity of the mother’s allegations. It is possible that her allegations may be exaggerated. Even allowing for that possibility, however, the corroborated evidence of the mother is more persuasive than the father’s uncorroborated denials. I find that there is a strong possibility that the father has been physically and verbally abusive towards the mother and the child. The risk of Leila being subjected to physical or emotional abuse if her father has contact with her is grave.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the parents
I am satisfied that the mother has demonstrated an appropriate attitude to the child and to the responsibilities of parenthood. I am not satisfied that the father has done so. He had very little to do with Leila prior to the family coming to Australia. He has had nothing to do with Leila since the parties separated shortly after they arrived in Australia. The father has made no attempt to exercise contact with Leila since the parties separated. He has not written to her, nor has he marked either of her birthdays over that period by sending her a gift. He seeks contact now only in response to the mother’s application that there be no contact. When invited to do so under cross-examination the father was unable to articulate how contact with Leila would be organised. The father’s apparent belief that the physical arrangements in the shared home would be appropriate for overnight contact for Leila was astounding. The father told Mr Sheridan that if Leila did not want to have contact with him he would not force her. Nevertheless, he pursued these proceedings to trial in the knowledge that Leila wanted nothing to do with him. The father is clearly unwilling to admit that he has done anything wrong in relation to the mother and Leila but he demonstrated no real understanding of what might be in Leila’s best interests.
The father demonstrated no distress or any real concern at his separation from Leila. His lack of concern was itself troubling. He appeared resigned to the fact that he was unlikely to secure any contact with Leila and simply wanted to hear it from the Court.
Family violence and family violence orders
As I already noted, I heard evidence of extensive and extreme physical, verbal and psychological abuse of the mother and Leila by the father. The mother obtained an apprehended violence order but that has now expired. She seeks an order from this Court of similar and continuing effect. She should get that order. In Iran the mother was a woman with few options. She had no immediate family there and lived in a patriarchal society. Likewise, in Turkey, the mother had few options. She was fleeing persecution in Iran and needed the assistance of her husband to secure entry into Australia where her immediate family lived. In Australia, the mother has many more options available to her. All of her immediate family live here. Australia is a country which is intolerant of spousal and child abuse. It is very striking indeed that almost as soon as the mother set foot in this country she sought the protection of her family and the State. This Court has a role to play in ensuring that the mother and Leila receive the protection that they need.
The order that is least likely to lead to the institution of further proceedings
The orders sought by the father would guarantee further proceedings.
I cannot rule out the possibility of further proceedings being required if I make the orders sought by the mother but they are, nevertheless, the orders that should be made, with minor modifications. Proposed order 4 sought by the mother is impracticable because the father does not know where the child and the mother are living and where the child goes to school. He may find out. If he does find out there would be real purpose in a restraining order preventing the father from approaching the child’s school or home. The order sought by the mother needs to be modified so that it operates to prevent the father knowingly approaching the child’s school or home.
There are no other relevant facts or circumstances.
I am satisfied that I should make the orders sought by the mother. Those orders were sought on her behalf both by Mr Levy and were also sought by the separate representative. In addition, Mr Levy took me to extensive Family Court authority demonstrating the appropriateness of the orders sought by the mother in circumstances such as the present.
I will make those orders, modified as I have indicated.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 11 September 2003
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