Reema & Baboor
[2018] FamCA 886
•1 November 2018
FAMILY COURT OF AUSTRALIA
| REEMA & BABOOR AND ORS | [2018] FamCA 886 |
| FAMILY LAW – CHILDREN – Interim parenting – best interests of the child - where the mother alleges that the father and the paternal grandparents pose an unacceptable risk of harm to the child – where orders are made for the father and paternal grandparents to spend no time with the child – where it is alleged that the father has perpetrated serious physical and sexual violence on the mother and a previous intimate partner – where it is alleged that the child has been exposed to family violence – where it is alleged that the paternal grandparents were aware of the family violence and did not act protectively. |
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, s65D
Deiter & Deiter [2011] FamCAFC 82
George & George [2013] FamCAFC 182
Goode & Goode (2006) FLC 93-286; (2007) 26 Fam LR 422; [2006] FamCA 1346
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
SS & AH [2010] FamCAFC 13
| APPLICANT: | Mr Reema |
| FIRST RESPONDENT: | Ms Baboor |
| SECOND RESPONDENT: | Ms Reema Snr |
| THIRD RESPONDENT: | Mr Reema Snr |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
| FILE NUMBER: | PAC | 1995 | of | 2018 |
| DATE DELIVERED: | 1 November 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 17 September 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Coleman SC |
| SOLICITOR FOR THE APPLICANT: | Amg Law Firm |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Schonell SC |
| SOLICITOR FOR THE FIRST RESPONDENT: | Walter & Elliot Family Lawyers | |
| COUNSEL FOR THE 2ND AND 3RD RESPONDENT: | Mr Othen | |
| SOLICITOR FOR 2ND AND 3RD RESPONDENT: | Mark Brown & Associates |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW Parramatta Family Law |
PENDING FURTHER ORDER
That the mother have sole parental responsibility for X (“the child”), born … 2015.
That the child live with the mother.
That the child spend no time with the father or paternal grandparents.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Reema & Baboor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 1995 of 2018
| Mr Reema |
Applicant
And
| Ms Baboor |
First Respondent
And
| Ms Reema Snr |
Second Respondent
AND
| Mr Reema Snr |
Third Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern the three year old daughter (“the child”) of Mr Reema (“the father”) and Ms Baboor (“the mother”) and granddaughter of Ms and Mr Reema Snr (“the paternal grandparents”).
The seven year marriage of the parents ended on a final basis in May 2018 when the mother left the family home in the early hours of the morning taking the child with her.
The mother contends that she had been the victim of appalling family violence perpetrated by the father against her throughout the marriage. She asserts that the grandparents were aware of the father’s conduct and at times the child has been exposed to and traumatised by it. It is her case that the child will not receive a benefit from having a meaningful relationship with the father and that pending final hearing the child should be protected from the harm associated with contact with the father.
The mother seeks interim orders that she have sole parental responsibility for the child, that the child live with her and spend no time with the father or paternal grandparents.
The child has spent no time with the father or the paternal grandparents since separation. The father asserts that he poses no risk of harm to the child and seeks interim orders that he spend time with the child for two hours each Saturday at a professional supervision centre.
The paternal grandparents seek orders that they spend time with the child each alternate weekend from Friday until Sunday and from Thursday until Friday in the intervening week.
At the commencement of the interim hearing the Independent Children’s Lawyer (“ICL”) opposed the determination of the interim applications prior to the completion of criminal and Apprehended Domestic Violence Order (“ADVO”) proceedings against the father. Counsel for the mother agreed that the interim hearing should not commence in these circumstances. However, both the ICL and counsel for the mother indicated they were ready to proceed if necessary.
Counsel for the father and the paternal grandparents both sought that the interim hearing proceed on the day allocated. This judgment concerns these applications for interim parenting orders.
The ICL’s position at the interim hearing was to support the mother’s proposal that the child not spend time on an interim basis with either the father or paternal grandparents.
Background
The father who is 41 and paternal grandparents each aged 66 are of Indian/Country B heritage. The mother who is 33 is of Indian heritage.
The parents met in 2009 at a regional university where the father was working and the mother studying. They began living together later that year and married in January 2011. The father continued to work in the regional city but the mother gained employment in Sydney where she moved to live with the paternal grandparents in February 2013.
Following the return of the father to Sydney in 2015 the parents lived together in the home of the paternal grandparents. The paternal uncle also lives with the paternal grandparents.
In 2015 the child was born. After taking maternity leave until May 2016 the mother returned to work, initially three days per week.
When the relationship was intact the paternal grandparents had a significant role in the child’s life, including regularly assisting with picking her up from day care, and assisting with her daily care and routines.
The child attends day care four days per week.
The mother and the father were both employed in a professional capacity at the same business. The mother increased her employment to four days a week from July 2016 and the father works full time.
The parties separated on 7 May 2018 when the mother took the child and attended a police station in the early hours of the morning to report family violence allegedly perpetrated by the father. A provisional Apprehended Domestic Violence Order (“ADVO”) was made the same day which was continued as an interim order by a Local Court the following day and has been in place since that date. The father has since been charged with assaulting the mother causing bodily harm to her on 12 December 2017.
The mother and father have both been on paid leave from work since 7 May 2018, following the mother’s allegations and ADVO proceedings being instituted against the father.
The mother intends to return to work soon.
The maternal grandparents who usually reside in India have moved to Australia for three years to provide support to the mother.
The father initiated proceedings in the Federal Circuit Court on 8 May 2018 seeking orders that the child live with him and spend time with the mother as agreed between the parties.
On 10 May 2018 the mother filed a Response seeking parenting orders and initiating property proceedings. The mother has at all times sought interim orders that she have sole parental responsibility for the child, that the child live with her and spend no time with the father.
On 21 May 2018 the parenting and property proceedings were transferred to this court.
On 2 August 2018 the parties met with a family consultant for the purposes of the Child Responsive Program.
The paternal grandparents intervened in the proceedings in August 2018 and on 6 September 2018 sought orders that the child spend time with them.
The father amended his application in relation to interim parenting orders after being charged on 7 August 2018 in relation to allegedly assaulting the mother in December 2017. Pursuant to his Amended Application he sought orders that the child spend time with him at the same time as the paternal grandparents spend time with the child or in the event that the court did not make orders as sought by the paternal grandparents that he spend time with the child each Saturday and Wednesday from 9 am to 4 pm. He proposed that if the court were not minded to permit him to spend time with the child unsupervised that the time be supervised by the paternal grandparents.
On the day of the interim hearing the father amended his application again and sought orders that he spend time with the child for two hours each Saturday at a professional supervision centre.
At the interim hearing the mother sought orders that she have sole parental responsibility for the child, that the child live with her and spend no time with the father. The ICL took the position that the least detrimental parenting arrangement for the child would be in the terms of the orders proposed by the mother and that the father be restrained from coming into contact with the child until the criminal proceedings against him have been determined.
The Contested facts
Although when considering interim orders, the court identifies the competing proposals and issues in dispute on the basis of the agreed or uncontested facts the court may and in some circumstances must have some regard to the matters in dispute. In SS & AH[1], their Honours said at [100]:
Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
[1] [2010] FamCAFC 13
The mere fact that matters are in dispute does not mean the Court can ignore concerns that are raised in the material before it (see George & George[2], a decision of the Full Court citing Deiter & Deiter[3]).
[2] [2013] FamCAFC 182
[3] [2011] FamCAFC 82
In Deiter (supra) the Court was particularly concerned with the situation where the contested facts related to an alleged risk and where it was said at [61]:
Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
It is the mother’s contention that the father poses an unacceptable risk of harm to the child on a number of basis and that there is no benefit to the child in having a relationship to him as a result of these unacceptable risks which she contends cannot be mitigated.
It is also the mother’s case that the paternal grandparents pose an unacceptable risk of harm to the child as she contends that they failed to protect the child from being exposed to family violence perpetrated by the father and may do so in the future.
It appears that when seeking interim orders in previous applications, (including that the child live with him) the father contended that the mother poses some risk to the child on the basis of her mental state and likelihood that she may remove the child to India. However, these contentions were not pursued at the interim hearing, and was common ground that it is in the child’s best interests to live with the mother.
Family violence
It is the mother’s case that the father has been a perpetrator of violence in intimate relationships for many years. She alleges that he was violent towards his first wife throughout that relationship which lasted between 2002 and 2006 and in this regard relies upon an affidavit of his first wife.
The father’s first wife deposes to the father’s violence towards her on a number of occasions throughout the marriage commencing within a few months of the marriage. She deposes to a number of serious incidents in some detail and to attending with her father at a police station to make a complaint about the father’s conduct on more than one occasion.
The father’s first wife deposes to reporting the father’s first assault upon her to the paternal grandparents (with whom they both lived) and that the paternal grandfather told her “if you listen to him then he’s not going to hit you” from which she concluded that she would not receive support from the paternal grandparents in relation to the father’s violence. She deposes to one occasion when the paternal grandfather telephoned her and she agreed to return to live in their household but that the paternal grandparents informed her that she had brought significant shame, embarrassment and hurt upon them by involving police and that they held her responsible for the lack of trust in her relationship with the father and difficulties that they say the paternal family experienced as a result of her behaviour.
The father’s first wife sets out in her affidavit detailed evidence of serious assaults, sexual violence, emotional abuse including the use of threatening and abusive language, taking degrading photographs of her during sex and exercising control over many aspects of her life.
It is the mother’s case that the father behaved in a similar fashion throughout the course of their marriage. She alleges that the father was highly controlling of her from soon after the parties’ marriage in 2011, less than one year after the father was divorced from his former wife. She deposes to the father checking her telephone and communications throughout the marriage, exercising financial control over her and controlling the clothing she wore and her external appearance.
The mother also deposes to the father watching pornography for three to four hours each day and that he holds concerning attitudes towards sex including in relation to other women in their respective families such as each of their sisters. She says that on occasions the father required her to hold photographs of female family members while engaging in intercourse. The mother also deposes to the father expressing degrading attitudes towards women and making sexual comments about school girls and young family members and his desire to have sex with them.
The mother alleges that shortly following the child’s birth in 2015 the father sexually assaulted her by forcibly having anal sex with her. She deposes that she suffered from an anal fissure a result which caused her pain and bleeding for around two years and led to her suffering from anaemia due to blood loss. The father denies this allegation and deposes that the mother’s anal fissure was associated with giving birth.
The mother alleges that in or around November 2017 she began working longer hours at work, which caused the father to become angry and put pressure on her to resign from her job. In the course of one argument about this topic she contends that the father pushed her against a wall and later threatened her that if she wanted to continue working she could live on her own. The mother deposes that the paternal grandparents also asked her to leave her job. The father and paternal grandparents deny asking her to do this.
The mother deposes that the father’s insistence that she leave her job led her to becoming upset and that she had a text message conversation on her phone with a colleague about the situation.
The mother alleges that on 12 December 2017 (“the December incident”) the father saw the messages between herself and her colleague on her phone and having become aware of her complaints launched a vicious and sustained physical attack upon her. She deposes that the father pulled her by her dress causing it to rip, slapped her, pulled on her necklace causing it to break, threw her onto the bed, punched, kicked her in the buttocks and choked her twice. She alleges that the attack began in the evening from 7:30 pm and continued throughout the night until around 5 am.
According to the mother during the first half an hour of the attack in the evening the child was present in the room and exposed to the father’s violence. She deposes that the paternal grandmother then came into the room and removed the child.
The mother also claims that during the attack she was crying out loudly and believes that the paternal grandparents heard her. Each of the grandparents depose that they did not hear any noises or see anything that caused them concern.
The mother deposes that at 5 am the father said “it’s 5:00 am, everyone is going to be waking up now, you have learnt your lesson”. She alleges that the father then sexually assaulted her by forcibly having anal sex with her three times over the next few hours and forced her drink his urine out of a drinking vessel which held sentimental value to her.
The mother deposes that the following day neither she nor the father went to work. She alleges that the father who works at the same workplace sent an email to the company in her name stating that she would be absent due to an emergency in India.
The mother alleges that the father confiscated her phone at the beginning of the incident and did not ever return it to her but provided her with a replacement phone.
The mother photographed her injuries on 21 December 2017 and she deposes the father photographed the injuries as well. She also alleges that she suffered permanent damage to her hearing as a result of the incident.
The father denies that the December incident occurred. He admits to seeing the messages on the mother’s phone between the mother and her colleague and alleges that the messages suggest that they were having a romantic affair.
The mother alleges that following the December incident the father became increasingly controlling of her movements and communication. She deposes that he threatened her that if she sought legal advice he would “kick [her] out of the country [as a non-citizen] and ensure [she] will never get [the child]”. He monitored her phone and social media accounts and controlled what she wore.
She also alleges that the father was financially controlling and she had to seek the father’s permission to make purchases or bank withdrawals.
The mother alleges that there was a further incident of violence in late January or early February 2018 (“the January incident”) in which the father forced her to take her clothes off and get into the shower. She deposes that the father then directed her to kneel down and told her he was going to urinate in her mouth and that she was to drink his urine saying “drink it bitch. Drink it.”
The mother deposes that the father then urinated over her whole body, face and eyes and when she began to gag and cough he said to her “What’s the big deal. You should do this because your husband likes it. You are a susu [urine] drinker”. The father denies these allegations.
Child abuse
Although the main thrust of the mother’s allegations in relation to a risk of harm posed by the father concern family violence towards her to which the child has been exposed and may be exposed in the future she also raises concerns about other direct risks to the child. In this regard she raises concerns about the father’s attitude towards females and female children. For example she alleges that the father would often comment about school girls and say things to her such as “do you think these girls are virgins?... she’s fresh from the farm” and “what if I just put my penis in their anus? Wouldn’t that be fun?” According to the mother the father made comments about his adolescent female relatives using words to the effect of “If I give her a couple of drinks she will spread her legs for me.”
The mother deposes to a specific incident in which she says that the father forced her to take her clothes off and get into the shower, when the child was having a shower and proceeded to take photographs of herself and the child in the shower.
The mother also claims that the father insisted on the child sleeping in the parties’ bed and that the father slept naked which she felt was inappropriate. She said she felt disturbed when she woke to find the child asleep with part of her body resting on the father’s genitals.
The mother also deposes that the father has exhibited sexualised behaviour in the child’s presence. She alleges that on three occasions he took off his clothes in front of the child and did a dance in which his genitals swung around.
The mother also alleges that the father has been physically abusive towards the child. In particular she deposes to an incident at the end of 2017 in which he hit the child on her bottom with a plastic ruler when she was crying as he asked the child to give him the mother’s phone and the child didn’t want to hand it over.
The mother alleges that the father regularly tormented the child by taking toys from her, restraining the mother from attending to her when the child was distressed and persisting to play games with the child despite her distress. For example she alleges he regularly pretended to take the child’s hair off her head and place it on his head.
The mother alleges that in or around March 2018 the child began waking multiple times a night and stated that this happened more often on the nights where the father had tormented her during the day.
The mother deposes to the father exercising control over her interactions with the child to the child’s detriment. For example she deposes an occasion in around 2016 when the father did not permit her to breastfeed the child when the child was hungry until the maternal grandmother intervened and that after she fed the child he took and kept her from the mother.
The mother also deposes that on 6 May 2018, the day before she left the father, the family were in the car and the child told the parents that she needed to urinate. The mother asked the father to stop the car so that she could place a nappy on the child but the father refused to stop the car causing the child to become very distressed.
As touched upon earlier, the parties’ separated when the mother left the family home in the early hours of the morning on 8 May 2018 taking the child with her and attending directly at a police station to make a report in relation to the father’s violence. The mother says that this was her first opportunity to escape from the father’s control of her movements.
The police made an application for an ADVO on behalf of the mother and the grounds for the order include the mother’s complaints of the father’s control over her communications and set out the details of the December incident in similar terms to her affidavit. As a result a provisional ADVO was made for the mothers protection which has been continued as an interim order by the Local Court at the various subsequent court events.
Discussion and assessment of risk of harm
In summary the mother contends that the father poses an unacceptable risk of harm towards the child on the basis that the child may be physically abused, may be the subject of inappropriate sexual behaviour by the father and may be exposed to the father’s family violence. It is the mother’s case that the risk of harm to the child cannot be mitigated by supervision as the father contends and on the basis of her allegations concerning the father’s past conduct towards her there is no benefit to the child in having a meaningful relationship with the father.
It is contended on behalf of the mother that although the court cannot make findings in an interim hearing the alleged risk posed by the father must still be assessed at this interim stage. She contends that weighing the probabilities of her allegation that the father sexually abused her in 2015, committed a serious and ongoing assault in December 2017 and January 2018 against the father’s denials of his conduct and the likely impact on the child in the event that these allegations were found to be true that the court would have real concerns about the risk posed by the father to the child.
Further, in relation to the risk that the father may perpetrate violence towards another intimate partner in the future to which the child may be exposed the mother relies upon the allegations made by the father’s former wife. I understand the mother’s contention to be that in the event that the father is found to have behaved in a similar fashion and displayed similar attitudes to intimate partners in two consecutive relationships the likelihood of him behaving in a similar fashion in the future to which the child may be exposed is increased.
In considering both the likelihood that the father will perpetrate family violence in a future personal relationship to which the child may be exposed, the likelihood that he may physically abuse and behave in a sexually inappropriate manner towards the child and the severity of the impact caused by such events if they were to occur the mother’s counsel attached particular weight to the mother’s contentions about the father’s attitude towards her and his former wife, women in general and female children.
Although in his affidavit the father specifically denies the mother’s allegations in relation to physical and sexual abuse upon her his response in relation to her allegations about highly concerning remarks made by him about young women including family members is unknown.
I note that the father’s previous wife deposes that she has not met, spoken with or communicated in any way with the mother. She gives similar evidence as to the father’s attitudes towards women and intimate partners. She not only makes allegations of the father’s violence towards her but also alleges that he and his parents expressed that they expected her obedience and compliance to the father, that the father described himself as “the boss” and told her that there was “no equality in this relationship”. The father’s previous wife also refers to the father as being sexually demanding and violent, that he took degrading photographs of her, informed her that he was having other sexual relationships during their relationship including with a distant cousin, watched a lot of pornography and was highly controlling of many aspects of her life.
I accept the submission of the mother’s counsel that this evidence if accepted demonstrates that over a long period of time, going back to 2002, the father has held an attitude towards women of entitlement and control evidenced in physical assaults, sexual assaults, subjecting the victims to degradation, emotional and verbal abuse and exercising control over them.
Further, of particular concern and a matter to which I will return, is that if this evidence is accepted the paternal grandparents with whom both the mother and the father’s previous wife resided were aware of the father’s attitude and conduct, colluded with him in reinforcing that it was acceptable and failed to protect the previous wife, the mother, and the child from his violent conduct and appalling attitudes towards women.
I take into account the nature and extent of the allegations made by the mother concerning the father, the likely impact on the child from being exposed to the father’s conduct had it occurred and the impact on the mother in the event that she is required to comply with orders that would bring the child into contact with the father. In my view any contact between the father and child in these circumstances may cause serious and lasting harm to her. As opined by the Family Consultant:
If [the mother’s] claims have veracity, her reported high level of fear of [the father] would be understandable and she may experience significant psychological distress if she comes into contact with [the father] and or about [the child] spending time with [the father]. This may significantly negatively impact [the child] and it is possible that spending time with [the father] would be deleterious to [the child].
The family consultant also opines, and I agree, that if the mother’s allegations are found by the court to have no basis then her apparent unwillingness to facilitate a relationship between the child and the father would be of serious concern.
The family consultant goes on to opine that given the serious nature of the allegations made and the fact that the child is currently not spending time with the father the least detrimental alternative for the child in the interim may be that the father be restrained from coming into contact with her until the court has determined the veracity of the mother’s allegations.
The family consultant came to this last mentioned view on the basis of the information known when she interviewed the family. At that time the father had not been charged and informed the family consultant that this demonstrated that the police did not believe the mother. There is also no suggestion that when the family consultant interviewed the family the mother had any awareness of allegations made by the father’s previous wife that he had behaved in a similarly violent manner towards her.
I accept that the relationship between the child and her father may very well be damaged if there were to be a lengthy period in which she spent no time with him and it was noted by the family consultant that the child’s relationship with the father already appeared disengaged. However, in the event that a court finds that the father does not pose an unacceptable risk of harm to the child and orders are made that she spend time with him any damage or attenuation in the relationship may be addressed through therapeutic intervention.
While it would be unfortunate if the relationship between the father and child were damaged in these circumstances the likelihood of trauma to the child and adverse psychological impact upon the mother if the father were found to pose an unacceptable risk is of great weight when balancing these alternatives. There is in my view a real risk that if the child were traumatised by contact with the father and the mother’s psychological functioning were so seriously adversely affected these harms may not be capable of being successfully and appropriately remedied.
In these circumstances I assess the risk posed by the father as too high to justify making the orders that he seeks. I am of the view that even the limited proposal that such time be of limited duration and occur in the supervised setting of a contact centre does not mitigate this risk.
I also assess the risk posed by the paternal grandparents to be of such a magnitude that it is not in the child’s interest to spend interim time with them for the following reasons.
It is the mother’s case that the paternal grandparents were aware of the father’s physical violence towards her and failed to protect the child from it. In particular the mother alleges that during the extended assault of her in December 2017 the paternal grandmother entered the room where the assault was taking place and where the child had been present for about half an hour and removed the child. The mother also contends that given the layout of the house and that she was crying and calling out during the assault the paternal grandparents must have heard her. The paternal grandfather denies hearing anything of concern on that night. The paternal grandmother makes a similar denial and although the mother has alleged from the outset in the proceedings that she came into the room and removed the child this is not addressed in the paternal grandmother’s affidavit.
The mother also alleges that the paternal grandparents were well aware of the control exercised by the father over many aspects of her life throughout the marriage and contends on occasions that the paternal grandparents also behaved in coercive and controlling manner towards her such as asking her to leave her employment in late 2017.
In addition to an alleged failure to protect the child from being exposed to the father’s violence against the mother concerns arise in my view about the paternal grandparents tolerating or holding concerning views in relation to women and their inferior position in a relationship. I am also of the view that the paternal grandparents demonstrate little insight into the impact upon the mother if she were found to have been victimised by the father and the psychological distress she would experience if she were to come into contact with him or the grandparents. It is noteworthy in this regard that the paternal grandparents proposed that the child spend time with them between Friday morning and Sunday afternoon each alternate weekend and one overnight in the intervening week and that the mother collect the child at the conclusion of time from their residence.
At the hearing in respect of these interim orders the paternal grandparents’ counsel submitted that there was no risk to the child in spending time with them and that if that was not to occur that there would be quite a significant loss of relationship for the child.
Although the paternal grandparents’ application was as outlined for three nights per fortnight at the hearing it was submitted that they would “gladly accept” any time that the court considered as appropriate. They also conceded that the changeover arrangement they had proposed whereby the mother was to attend their home was not appropriate and it was suggested that changeover could occur at a neutral venue such as a local shopping centre.
I assess the relative risks associated with the child coming into contact with the paternal grandparents if it were found that they were aware of the father’s violent controlling and abusive conduct towards the mother (and to the father’s previous wife) outweigh the risk that their relationship with the child may be harmed in the event there is no interim contact for the same reasons given when considering contact with the father.
For these reasons I am of the view that the risks associated with the child spending time with the paternal grandparents are unacceptably high.
The law & discussion
The relevant principles in relation to parenting and interim proceedings are set out in Goode & Goode[4].
[4] (2006) FLC 93-286, (2007) 26 Fam LR 422, [2006] FamCA 1346
In determining this application, the Court must uphold the relevant objects and principles in the part of the Family Law Act 1975 (Cth) (“the Act”) dealing with parenting.
Pursuant to s65D(1), subject to certain sections which do not apply here a court may make such parenting order as it thinks proper.
Section 61DA provides that when making a parenting order in relation to a child the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 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 abuse of the child or another child in the family or family violence. Further when making interim orders the presumption applies unless the court considers that it would not be appropriate.
Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.
In Deiter (supra), the Full Court said when making an interim order a Court should have regard to its likely duration, especially in cases where the interim order under consideration involves some disadvantages which may need to be endured by the child under consideration.
Given that these proceedings were only commenced a few months ago and that the father’s criminal charges are yet to be determined it is likely that the interim parenting arrangement under consideration will be in place for many months. The father and paternal grandparents both express concern about the harm to the child’s relationship with each of them respectively if she were not to spend any time with them in this likely lengthy interim period. The mother is concerned about the harm to the child if she were required to be brought into contact with the father for the likely significant period prior to final hearing.
The Court must make such orders as are in the best interests of the child as a result of consideration of the matters set out in s 60CC.
The primary considerations: s 60CC(2)
The primary considerations, which are contained in s 60CC(2), are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) provides that in applying these considerations, I am required to give greater weight to the need to protect the child from harm than to the benefit to the child of having a meaningful relationship with both parents.
Although the meaning of “meaningful relationship” is also not defined in the Act, it has been interpreted as meaning a relationship which is “important” or “significant”.[5]
[5] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92; Mazorski & Albright [2007] FamCA 520 at [26].
The Full Court has not interpreted this consideration as creating a presumption that a child does receive a benefit from having a meaningful relationship with both parents but the question to be determined is whether the child will receive the benefit from having a meaningful relationship with a parent.
There is no dispute that the mother’s proposal would bring about the result that the child would not have any relationship with her father prior to the final determination.
Although it is contended on behalf of the mother that the child is not benefited by having a meaningful relationship with her father, I am unable to make this positive finding in an interim application where findings of fact cannot be made. However, for the reasons given when assessing the various risks posed by the father and as greater weight must be attached to the need to protect the child from harm from being subjected to or exposed to abuse and family violence I am of the view that this need outweighs any benefit to her of having a meaningful relationship with the father.
The first of the primary considerations does not apply to the paternal grandparents though the child’s relationship with them will be considered elsewhere. The second of the primary considerations is the need to protect the child from harm which comes about in particular ways. For the reasons previously given I am of the view that this is also a particularly weighty factor when considering the paternal grandparents’ application.
Section 60CC(3) sets out additional considerations, a number of which are not able to be applied in this interim application. I will refer to those which are relevant and able to be applied to the competing interim applications.
The additional consideration: s 60CC(3)
The child is clearly too young to have expressed a view about her parenting arrangements though the family consultant did express an opinion concerning the nature of the child’s relationships with others.
The family consultant observed that the child refused to separate from the mother to go into childcare or to accompany the family consultant into the observation room. The child became distressed when she was taken by the maternal grandmother into the observation room but looked calm but confused when she was handed to the father.
During her observation with the father, the family consultant reported that the child appeared subdued and reserved. She did not engage verbally with the father, but nodded when he asked her a question and allowed him to kiss her goodbye. The father was observed to speak to her in a warm tone and appropriate manner.
Of the child’s relationship with the father the family consultant opined:
[The child] appeared confused about seeing [the father] and her relationship with him appeared disengaged. There are a number of possible reasons for this, including a perception that [the mother] does not view [the father] positively, [the child] allegedly having witnessed family violence perpetrated by [the father] towards [the mother] and/or [the child] having not spent time with [the father] for several months and being confused as to why this is the case and why she is seeing him, in unfamiliar settings, now.
Given that the child lived with her parents in the paternal grandparents’ home and that they played a significant role in the child’s care it can be assumed that their relationship with the child is significant and of importance.
It had initially been the father’s case that the child had a poor relationship with the mother which is reflected in his original interim application that the child live with him and spend limited supervised time with the mother at a contact centre.
When interviewed by the family consultant the father confirmed that he proposed that the mother attend family therapy regarding her relationship with the child and if there was an improvement in that relationship he would agree to an increase in time and the removal of supervision.
He also maintained when he saw the family consultant that the mother posed a risk of physical harm to the child and expressed the view that the mother’s departure from the family home with the child in the early hours of the morning demonstrated that she suffered from some form of mental health condition.
The father told the family consultant that while the child had an established relationship with the mother she had also experienced her as a disinterested parent and that the mother had isolated the child from “her whole network”. None of these matters were maintained at the interim hearing and it can be taken from the nature of the father’s application that he accepts that the mother is a capable parent and does not pose any risk to the child.
In any event there is no evidence to support any of these contentions about the nature of the mother’s relationship with the child.
The Family Consultant states that the child skipped to the observation room to greet the mother and appeared eager to play with her. The mother used a gentle and warm tone when talking to the child and allowed her to lead the play. The child was observed to interact with the mother in an appropriately assertive way.
Of the child’s relationship with the mother, the family consultant opined:
[The child] appears to have an established relationship with [the mother] and nothing arose during the course of this assessment to suggest [the mother] requires attendance at family therapy to assist her relationship with [the child], as has been proposed by [the father].
The mother raises a number of concerns about the father’s conduct which if found true may indicate some serious impairments in his capacity to meet the child’s emotional needs which are unable to be determined in this interim application.
The issue of family violence is of central importance in this application and for the reasons given very significant weight will be attached to it in determining the parenting orders that are in the child’s interests.
Conclusion
Having regard to all of the foregoing matters and for the reasons given I assess the risks associated with the orders proposed by the father and paternal grandparents as unacceptably high. I am also of the view for the reasons given that such risks cannot be mitigated by supervision.
Although there are some risks to the child in not spending time with the father and paternal grandparents those risks are likely to be satisfactorily addressed through therapeutic intervention in the event that it is found at a final hearing that the father and/or paternal grandparents do not pose an unacceptable risk.
For those reasons in my view it is in the best interests of the child that there an order made that she spend no time with either the father or the paternal grandparents.
The parents have no capacity to communicate or co-operate at present and the mother expresses very significant fears about any contact with the father. The father is currently facing criminal charges for assaulting her. In these circumstances there is no possibility that the parents would be capable of joint decision making in the best interests of the child.
I am unable to make findings in relation to a number of significant factors relevant to the child’s best interests which may justify there being no interim order with respect to parental responsibility. However, in circumstances where I propose making orders that the child spend no time with the father and where the mother has effectively been exercising sole parental responsibility for the child since she departed the family home in May 2018 I am of the view that it is in child’s best interests for an order to be made that the mother hold sole parental responsibility for the child.
For the foregoing reasons I make the orders set out in the forefront of this judgment.
I certify that the preceding one hundred and twenty-five (125) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 1 November 2018.
Associate:
Date: 1 November 2018
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